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THE  CONSTITUTION 

AND 

WHAT  IT  MEANS  TO-DAY 


BY 

EDWARD  S.  CORWIN 

McCormick  Professor  of  Jurisprudence  in  Princeton  University: 

Author  of  The  President's  Control  of  Foreign  Relations, 

The  Doctrine  of  Judicial  Review,  Etc. 


PRINCETON  UNIVERSITY  PRESS 

LONDON  :  HUMPHREY  MILFORD 
OXFORD  UNIVERSITY  PRESS 

1920 


Copyright,   1920,  by 
Princeton  University  Press 

Published   1920 
Printed  in  tiie  United   States  of  America 


-rr- 


^  PREFACE. 

^  The  Constitution  as  here  printed  is  for  the  most 
part  the  text  which  appears  in  Old  South  Leaflets, 
No.  I. 

I  avail  myself  of  this  opportunity  to  express  my 
thanks  to  two  of  my  colleagues,  Professor  Dana  C. 
Munro  and  Professor  Christian  Gauss — to  the  for- 
mer for  suggesting  this  small  volume  and  to  the 
latter  for  several  ideas  which  have  been  incorporated 

in  it  to  its  improvement. 

The  Author. 


^ 


^  i8SJ„7^ 


H^T' 


INTRODUCTION 

Notwithstanding  Mr.  Bryce's  assurance  that  the 
Constitution  can  be  read  through  in  twenty  minutes, 
comparatively  few  people  undertake  the  task  nowa- 
days. This  unfortunate  circumstance  is  doubtless 
to  be  explained  by  several  reasons,  but  there  is 
one  of  these  reasons  which  is  of  special  importance. 
This  consists  in  the  fact  that  in  the  course  of  130 
years  the  real  constitution  of  the  United  States  has 
come  to  be  something  very  different  from  the  docu- 
ment referred  to  by  Mr.  Bryce. 

It  was  the  wise  purpose  of  the  men  who  framed 
the  Constitution  to  avoid  what  one  of  them  called 
"a  too  minutious  wisdom."  Being  desirous  that 
their  work  should  endure,  they  for  the  most  part 
laid  down  only  general  principles.  The  framework 
of  the  new  Government  was,  it  is  true,  outlined 
quite  distinctly,  but  the  real  scope  of  the  powers 
which  it  should  exercise  and  of  the  rights  which  it 
should  guarantee  was  left,  to  a  very  great  extent,  for 
future  developments  to  determine. 

Moreover,  in  the  course  of  130  years  conditions 
of  life,  and  with  them  political  tendencies,  have 
undergone  great  changes.  In  the  case  of  an  instru- 
ment couched  in  such  broad  terms  as  is  the  Consti- 
tution, a  great  deal  depends  upon  the  point  of  view 
from  which  the  work  of  interpreting  it  is  ap- 
proached.     To   be   sure,   the   final   word   in   inter- 


ii  Introduction 

preting  the  Constitution  belongs  to  the  Supreme 
Court,  a  lx>dy  whose  membership  alters  only  very 
gradually;  yet  it  does  alter  and  even  if  it  did  not, 
its  members  could  not  remain  unaffected  by  wide- 
spread changes  among  their  countrymen  as  to  po- 
litical philosophy  and  outlook. 

Thus  at  one  time  the  Constitution  has  been  in- 
terpreted from  the  point  of  view  of  the  desire  for 
national  unity,  at  another  time  from  that  of  the 
desire  for  local  autonomy;  at  one  time  from  the 
point  of  view  of  concern  for  private  rights,  at  an- 
other from  that  of  concern  for  majority  rule. 

Inevitably,  the  interpretations  rendered  from 
these  often  conflicting  points  of  view  have  con- 
stantly modified — sometimes  cancelled — one  an- 
other, and  what  the  Constitution  means  to-day  is, 
so  to  speak,  their  algebraic  sum.  But  whence  are 
the  items  of  this  calculation  to  be  obtained?  To 
some  extent  from  the  history  of  actual  practice 
under  the  Constitution,  to  some  extent  from  tlie 
amendments  which  have  been  formally  added  to  it, 
but  to  a  more  important  extent  from  the  hundreds 
of  decisions  which  have  been  handed  down  by  the 
Supreme  Court  in  interpreting  its  provisions. 

To  gather  all  these  items  together,  however,  and 
sum  them  up  is  obviously  a  task  which  the  average 
citizen  has  no  time  to  perform  for  himself.     It  is 


Introduction  iii 

accordingly  this  very  task  which  this  small  volume 
endeavors  to  perform  for  him.  As  to  the  need  for 
the  kind  of  thing  here  attempted  there  can  be 
little  doubt.  The  Constitution  is  the  People's  Law; 
it  is  the  substructure  of  government  in  the  U.S.; 
it  is  the  great  mould  in  which  all  legislation,  all 
governmental  policy  is  cast.  The  citizen  simply 
cannot  perform  his  task  intelligently  without  a 
considerable  measure  of  familiarity  with  its  provi- 
sions and  their  meaning  to-day. 

The  Constitution  was  framed  by  a  convention 
which  assembled  at  Philadelphia  toward  the  close 
of  May,  1787',  and  adjourned  on  the  following  Sep- 
tember 17th.  This  body  was  summoned  by  the  Old 
Congress  of  the  Confederation ;  its  members  were 
chosen  by  the  several  State  legislatures — all  the 
States  but  Rhode  Island  finally  participating  in  its 
deliberations.  Of  the  fifty-five  members  who  at- 
tended, thirty-nine  signed  the  Constitution,  which 
was  then  submitted  for  ratification  to  conventions 
chosen  in  the  several  States  for  the  purpose.  Dela- 
ware was  the  first  State  to  ratify.  Then  followed 
ten  others  in  the  following  order :  Pennsylvania, 
New  Jersey,  Georgia,  Connecticut,  Massachusetts, 
Maryland,  South  Carolina,  New  Hampshire,  Vir- 
ginia, New  York.  Under  an  act  of  the  Old  Con- 
gress   the    new    Government    went    into    effect    on 


iv  Introduction 

March  4,  1789.  North  Carolina  and  Rhode  Island 
did  not  ratify  till  later. 

The  thing  which  brought  about  the  new  Constitu- 
tion was  the  apparently  impending  dissolution  of 
the  Confederation,  which  was  attended,  especially 
in  New  England,  by  social  disorders.  Even  before 
the  Revolution  had  come  to  an  end,  the  union  of 
States,  which  arose  on  the  basis  of  the  Declaration 
of  Independence,  had  become  extremely  weak  and 
ineffective,  and  once  the  war  was  over  localism  de- 
veloped to  an  alarming  degree.  Moreover,  within 
the  boundaries  of  several  of  the  States,  there  was  a 
sharp  division  of  society  into  creditors  and  debtors. 
The  latter  were  often  numerous  enough  to  control 
the  legislatures  and  abused  their  power  by  voting  all 
kinds  of  measures  calculated  to  avoid  their  legal 
obligations.  Finally,  Shay's  Rebellion  broke  out 
in  Massachusetts  toward  the  end  of  1786.  A  move- 
ment for  a  general  convention  to  reform  the  Articles 
of  Confederation  had  already  l>een  set  on  foot  at 
the  so-called  ''Annapolis  Convention"  of  the  pre- 
vious September.  The  Massachusetts  outbreak  im- 
parted to  this  movement  just  the  necessary  impetus 
both  in  Congress  and  the  State  legislatures  to  press 
it  to  rapid  fruition. 

Several  writers  with  Socialistic  sympathies  have 
recently  implied  or  stated  that  the  Convention  of 


Introduction  v 

1787  was  governed  by  unworthy  motives,  that  in 
particular  it  was  concerned  to  bolster  the  public  debt 
of  the  Confederation,  of  which  its  members,  it  is 
alleged,  were  large  holders.  These  allegations  are 
refuted  by  several  facts :  In  the  first  place,  so  far 
as  has  been  shown,  the  members  of  the  Convention 
held,  in  the  aggregate,  very  little  of  the  funded  debt 
of  the  Confederation,  and  its  leading  members  held 
scarcely  any.  In  the  second  place,  the  Convention 
took  absolutely  no  action  regarding  the  Continental 
Currency,  which  was  the  principal  evidence  of  the 
Confederation's  public  indebtedness.  In  the  third 
place,  it  voted  down,  ten  States  to  one,  a  motion 
meant  to  guarantee  payment  of  the  funded  debt  at 
par. 

Nor  is  there  any  valid  criticism  to  be  levelled 
against  the  membership  of  the  Convention.  This 
consisted  in  great  measure  of  precisely  the  men 
whom  one  acquainted  with  the  history  of  the  times 
would  expect  to  find  there,  men  like  Washington, 
Franklin,  Madison,  Hamilton,  Dickinson,  the  two 
Pinckneys,  Ellsworth,  the  two  Morrises,  Wilson. 
Sherman,  Mason,  Randolph,  Rutledge,  Livingston, 
and  others  who  had  already  become  recognized  as 
the  foremost  men  of  the  day.  The  two  Adamses, 
Jefferson,  and  Jay  did  not  attend,  it  is  true;  all  of 
them  except  Samuel  Adams  were  out  of  the  country 


vi  Introduction 

at  the  time,  and  they  all  finally  favored  the  adoption 
of  this  Constitution. 

The  one  and  only  advantage  which  the  members 
of  the  Convention  sought  from  their  work  was  one 
which  they  proposed  to  share  with  their  fellowmen, 
the  gain,  to  wit,  of  a  better  system  of  government. 
Nevertheless,  it  may  be  doubted  whether  their 
fellowmen  were  at  first  disposed  to  appreciate  this 
service.  The  Constitution  was  ratified  by  the  repre- 
sentatives of  a  minority  of  the  American  nation; 
in  the  graphic  words  of  John  Adams,  it  "was  ex- 
torted from  the  grinding  necessities  of  a  reluctant 
people."  Yet  it  did  not  continue  a  minority  docu- 
ment for  long.  Less  than  a  decade  had  passed  ere 
it  had  become  an  object  of  popular  veneration,  the 
rallying  point  of  every  considerable  political  force 
in  the  country.  What  Bagehot  says  of  the  British 
monarchy  may  indeed  be  repeated  of  the  Constitu- 
tion for  by  far  the  greater  part  of  its  existence.  It 
has  "strengthened  government  with  the  strength  of 
religion." 

Some  readers  of  these  pages  may  feel  that  certain 
controverted  points  regarding  the  relations  of  the 
States  to  the  Constitution  have  been  disposed  of 
rather  cavalierly,  in  favor  of  the  nationalistic  point 
of  view.  It  has  to  be  admitted,  as  indeed  is  implied 
in  what  was  said  above,  that  constitutional  inter- 


Introduction  vii 

pretation  has  undergoine  several  vicissitudes  in  this 
respect.  The  Constitution  itself  originally  repre- 
sented a  revolution  against  the  States'  Rights  prin- 
ciple. Later,  however,  it  was  itself,  though  less 
completely  and  much  more  gradually,  revolutionized 
in  favor  of  States'  Rights.  Then  came  the  Civil 
War  which,  by  force  of  arms,  revolutionized  it 
back  again,  and  this  time  permanently,  so  far  as 
one  can  judge  to-day.  On  the  fundamental  issue, 
accordingly,  of  the  nature  of  the  Constitution  and 
its  source,  I  have  felt  free  to  adopt  throughout  the 
point  of  view  of  Chief  Justice  Marshall.  At  other 
points  I  do  not  believe  that  I  have  trod  on  anybody's 
controversional  toes — at  least  I  have  not  intended  to. 


TABLE  OF  CONTENTS. 

FAGS 

The  Preamble,    i 

Twofold  purpose  of  the  Preamble, I 

"We  the  People,"  1-2 

Article  I — Congress  and  Its  Powers. 

Section  I — Vests   legislative  powers   of   the   United 

States  in  Congress,   2 

Section  II — Provides  for  the  House  of  Representa- 
tives : 

[Par.   i] — Who  vote  for  Representatives — "Elec- 
tors,"         2-3 

[Par.  2] — Who  are  eligible  as  Representatives — 
"Inhabitants,"  3 

[Par.  3] — The  basis  of  representation.     "Three- 
fifths  of  other  persons," 3-4 

[Par.  4] — Method  of  filling  vacancies 4 

[Par.  sJ^The    Speaker    and    his    powers.      Im- 
peachment,           4-5 

Section  III — Provides  for  the  Senate : 

[Par.  i] — Number  and  method  of  choosing  Sen- 
ators (superseded  by  Amendment  XVII),   5 

[Par.  2] — The  original  three  classes  of  Senators. 
Vacancies,     5-6 

[Par.  3] — Who  are  eligible  as  Senators 6 

[Par.  4] — The    Vice-President    to    preside.      The 
"casting  vote,"    6 

[Par.  5] — The  President  pro  tempore  and  other 
ofificers  of  the  Senate 6 

[Par.  6] — The  trial  of  impeachments.    What  im- 
peachments are,  and  how  they  are  voted.    Who 

are  subject  to  them 7 

"Treason,    bribery,   or   other   high    crimes   and 

misdemeanors."     An  illustration,   7-8 

The  Senate  as  a  court 8 

(ix) 


Tablk  of  Contents 

PAGS 
[Par.  7] — The    judgment    in    cases    of    impeach- 
ment.     No    "jeopardy    of    life    or    limb"    (see 
Amendment    V ) ,    8-9 

Section  IV — Elections  of  members  of  Congress  and 

its  assemblage : 
[Par.  i] — Control  by  Congress  over  elections  (see 

Amendment  XVII).     Present  legislation 9-10 

[Par.  2] — The    time    of    regular    sessions     (see 

Article  II,  Section  III),  10 

Section  V — Parliamentary  rights  of  the  two  houses: 

[Par.  i] — Each    house    judge    of    elections    and 

qualifications  of  its  members,  and  may  compel 

attendance.     "Qualifications,"     lO-II 

[Par.  2] — Rules  of  procedure.     Power  to  punish 

and  expel  members, II 

[Par.  3] — Journal  and  "ayes"  and  "nays,"  ii-ia 

[Par.  4] — Rule  regarding  separate  adjournments,         12 
Separate  and  "concurrent"     resolutions.     Com- 
mittees,  investigations,   contempts.     The  Act 
of   1853,   12-13 

Section   VI — Special    immunities   and   disabilities   of 
members : 

[Par.  l] — Compensation,    immunity    from    arrest, 
freedom  of  debate,    13 

[Par.  2] — Ineligibility    to    certain    civil    offices. 
Same  of  civil  officers  to  membership.     A  ques- 
tionable practice 14 

Section  VII — Procedure  in  the  enactment  of  laws: 
[Par.    i] — Rule    with    regard    to    origination    of 

revenue  bills,  without  effect  to-day,  14 

[Par.  2] — The  President's  veto  and  how  it  may  be 
overridden.    "Two-thirds"  of  each  "house,". .. .   14-15 
Early  view  of  the  veto  and  that  held  to-day.   A 

suggestion  for  changing  the  veto  power,  ....   15-16 


Table  of  Contents  xi 

PAGE 
[Par.  3] — What   proposals    must    be    submitted   to    the 
President,  what  ones  need  not  (see  also  Article 

V) 1^17 

Section    VIII — The   most   important    section   of    the 
Constitution,    being    the    principal    source    of 

Congress's  Powers,    17-18 

[Par.   l] — Congress's  plenary  power  of  taxation. 

Two  exceptions,   18-19 

Rules  governing  the  exercise  of  the  power,   ...  19 

"Duties."    "excises,"    "imposts,"    "direct   taxes." 
The  Income  Tax  Case  of  1895   (see  Amend- 
ment X'VI).    Income  and  profits  taxes  to-day,  19-20 
Congressional   regulation  of  certain  businesses 

by  taxation,    20 

[Par.  2] — The  borrowing  power.  "Fiscal  powers" 

of  the  National  Government,  21 

[Par.  3]— The  "Commerce  Clause," 21 

"Commerce    narrowly    and    broadly    defined." 

"Among  the  States."    "To  regulate," 21-22 

Congressional  regulation  of  interstate  transpor- 
tation.    Eminent  domain,    22 

Rate  regulation  (see  Amendment  V) 23 

Incidental  powers  over  intrastate  rates.  Possi- 
ble consequences  of  this  doctrine 23-24 

Regulations  of  the  agents  and  instruments  of 
interstate  transportation.  The  Federal  Em- 
ployers' LiabiUly  Act  of  1908,  24 

When  Congress  may  prohibit  interstate  com- 
merce.    The  case  of  lottery  tickets  and  that 

of  the  products  of  child  labor  compared 24-25 

Congress's  absolute  power  over  foreign  Com- 
merce          25 

Exclusiveness  of  Congress's  power  under  the 
"Commerce    Clause,"    26 


xii  Table  of  Contents 

PAGE 
The  "Commerce  Clause"  as  a  limitation  on  the 

taxing  power  of  the  States,  26 

Same  as  a  limitation  on  the  "police  powers"  of 

the    States 26-27 

State    regulation    of    intrastate    rates    and    the 

Fourteenth    Amendment,     2^ 

[Par.  4] — Power  over  naturalization  and  bank- 
ruptcy,      27-28 

[Pars.  5  and  6] — Power  with  regard  to  coinage, 
weights  and  measures,  and  counterfeiting  (see 
Paragraph  2,  above). 

[Par.  7] — The  "postal  power,"   28 

Congress's  power  to  take  over  the  railroads,  . .         28 
Power  to  prevent  misuse  of  the  postal  facili- 
ties  (see  Amendment  I),    -8 

[Par.  8] — Power  to  grant  patents  and  copyrights,        29 
[Par.  9] — Power  to  establish  inferior  courts   (see 

Article  III,  Section  I ) 29 

[Par  10] — Power  to  punish  piracies,  felonies  on 
the  high  seas  and  offenses  against  the  Law  of 
Nations.      Congressional   definition   of  the   Law 

of    Nations,    20 

[Par.  11] — Power  to  declare  war,  grant  letters  of 
marque  and  reprisal,  and  regulate  captures  on 

land   and   water,    29 

Scope  of  The  "War  Powers"  of  the  United 
States   (see  also  Article  IL  Sections  II  and 

III),    29-30 

Congress's    power    "to    declare    war."      Provi- 
sional power  of  the  President,  30-31 

Congress's  power  to  declare  peace 31 

"Letters  of  marque  and  reprisal,"   31 

[Pars.  \2  and  13] — Power  to  raise  and  support 
armies  and  to  provide  and  maintain  a  navy,   .  .  31-32 


Table  of  Contents  xiii 

PAGE 
Compulsory     military     service    and    the    Thir- 
teenth Amendment 32 

Congressional     control     over    the    use    of     the 

forces  of  the  United  States,  32 

America's   fear  of  standing  armies,    32 

[Par.    14] — Power   to   make   rules    for  governing 
the    land   and   naval    forces.     The    Articles    of 

War,     32-33 

[Pars.  15  and  16] — Powers  over  the  militia.     The 

National   Defense  Act  of   1916,    33 

[Par.  17] — Powers  of  exclusive  legislation.     The 

District  of  Columbia,    34 

[Par.  18]— "The  Coefficient  Clause.'*  "Necessary 
AND  Proper'  Powers.     Chief  Justice  Marshall's 

interpretation,  and  the  grounds  thereof 34-35 

Congressional    direction   of   other   departments,        35 
"Inherent"   Powers   of  the   National   Govern- 
ment.   35-36 

Section  IX — Lays  down  certain  Limitations  on  the 

Powers  of  Congress   (see  also  Amendments  I 

to  X): 
[Par.   i] — Clause  safeguarding  the  African  slave 

trade  till  1808,   36 

[Par.    2] — Clause    safeguarding    the    privilege    of 

the  writ  of  habeas   corpus.     Great  importance 

of     this     writ.       Lincoln's     suspension     of     it. 

Reasons  justifying  its  suspension,   36-37 

[Par.  3] — Prohibition  of  "bills  of  attainder"  and 

"ex   post    facto   laws,"    37-38 

[Par.   4] — "Capitation"   and   other   "direct   taxes" 

to  be  apportioned 38 

[Par.  5] — Prohibition  of  "export"  taxes,   38 

[Par.  6] — "No  preference"  clause,  38 


xiv  Table  of  Contents 

PAG8 

[Par.  7] — No  expenditures  without  appropria- 
tions. Congress's  control  of  the  purse  safe- 
guarded,       38-39 

[Par.     8]— Titles    of    nobility    prohibited;     also 
foreign  honors  without  consent  of  Congress,..         39 
Section   X — Imposes    certain    Restrictions   on   the 
States    (see  also  the  first  Section  of  Amend- 
ment XIV)  : 

[Par.  i] — Absolute  prohibitions.  Treaties,  alli- 
ances, coinage,  bills  of  credit,  legal  tender  acts, 
bills  of  attainder,  er  post  facto  laws,  laws  im- 
pairing the   obligations    of    contracts,    titles    of 

nobility,    39 

"Treaty"   and   "agreement,"    39-40 

"Bills  of  credit,"    40 

"Laws  impairing  the  obligation  of  contracts." 
Original  purpose  of  the  clause.  Marshall's 
extension  of  it  to  public  grants.  Its  relation 
to  the  "police  power"  of  the  States  to-day,..  40-41 

[Par.  2] — State  duties  on  imports  or  exports 
withcmt  consent  of  Congress  prohibited.  An 
exception,    41 

[Par.  3] — Further  restrictions  removable  by  con- 
sent of  Congress.     Tonnage  duties,  armaments, 

agreements,    war,    41 

'"Troops,"  the  National  Guard 41 

Article  II — The  President  and  his  Powers. 

Section   I — Defines  the   office   and   provides    for  the 
choice  of  the  officer : 
[Par.  i] — Vests     the     executive     power    of    the 
United     States    in    a     President.      "Executive 

power,''     42 

The  Presidential  term.     The  two-term  rule,  . .  42-43 
[Par.   2] — The   "Electoral    College."     Its  impor- 
tance to-day 43-44 


Table  of  Contents  xv 

PAGE 

Methods  of  choosing  Electors,   44 

[Par.  3] — Has  been  superseded  by  Amendment 
XII,     44-45 

[Par.  4] — Power  of  Congress  touching  the 
choice  of  Electors.  The  act  of  Congress  on 
the   subject,    45 

[Par.  5] — Who  is  eligible  to  become  President. 
Two  unanswered  questions,   46 

[Par.  6] — Succession  of  the  Vice-President. 
Provision  for  lack  of  both  President  and  Vice- 
President 46 

The  Presidential  Succession  Act  of  1886.  Pro- 
posed   measures    for    determining    disability 

of  the   President 47 

To  what  does  the  Vice-President  succeed?....  47-48 

[Par.  7] — The  President's  compensation  safe- 
guarded,              48 

[Par.  8] — The  Presidential  oath  of  office.  Does 
not  add  to  the  powers  of  the  office,  48-49 

Section    U — Defines    certain    of   the    powers    of   the 
President : 
[Par.    i] — Commander-in-Chief    of    the    Armv 
AND   Navy.     Relations    with   heads    of   depart- 
ments.    Pardon« 49 

Scope  of  powers  as  Commander-in-Chief.    The 

Proclamation  of  Emancipation,  50 

The  President's  Cabinet  extraconstitutional. 
Suggested  admission  to  the  floors  of  Con- 
gress,      5^51 

"Reprieve,"     "pardon,"    "offenses    against    the 

United   States,"   51 

Scope   of  the   pardoning  power.     Relation   of 

Congress  to  it,    51-52 

[Par.  2,  CI.  i] — The  Treaty-Making  Power,   ..         52 


xvi  Table  of  Contents 

PAGE 
Procedure    of    treaty-making    in    Washington's 
time  and  later.    The  Foreign  Relations  Com- 
mittee.    The   Senate's   veto.     "Amfendments" 

and   "reservations,"    52-53 

Undefined  character  of  the  treaty-making 
power.  Absolute  over  State  laws.  The 
Migratory    Game    Treaty   with    Canada    and 

supporting   legislation,    53-54 

The  enforcement  of  treaties.  Where  interven- 
tion by  Congress  is  required,  where  not.  The 
power    of    the    President    and    that    of    the 

courts.     Illustrations,    54-55 

The  termination  of  treaties 55 

Agreements  not  referred  to  the  Senate.  Illus- 
trations,             56 

[Par.  2,  CI.  2] — The  appointing  power.  Classes 
of  appointive  officers.  Steps  in  their  appoint- 
ment,        56-57 

Congress's  power  to  prescribe  qualifications  for 

office,    57 

Source  of  the  offices  of  "Ambassador,"  etc 57 

"Personal  agents."   Resort  to  should  be  limited,  57-58 

"Shall  be  established  by  law,"  58 

[Par.  2,  CI.  3] — Congress's  power  to  provide  for 

appointment  of  "inferior  officers,"   58-59 

[Par.  3] — Recess  appointments.     "Happen," 59 

Section  III — Bestows  further  powers  on  the  Presi- 
dent. The  message  power,  power  to  convene 
and  adjourn  Congress  on  certain  occasions, 
power  to  receive  ambassadors  et  al.  EKjty  to 
See  that  the  Laws  are  Faithfully  Exe- 
cuted  and    to    commission    all    officers    of   the 

United    States 59 

The  President's  initiative  to-day  in  legisla- 
tion,         60 


Table  of  Contents  xvii 

PAGE 

His  initiative  in  foreign  relations,  60 

Development  of   his  powers   in  relation  to  the 

execution  of  the  laws.     Illustrations 61-62 

Extraordinary  powers  delegated  to  him  by 
Congress  during  the  World  War.  Execu- 
tive legislation 62-63 

President  Taft  on  commissioning  officers,   ....         63 

Section  IV — Defines  liability  of  the  President  and 
other  civil  officers  of  the  United  States  to  im- 
peachment,             63 

Other  ways  of  keeping  the  President's  subor- 
dinates responsible.  The  power  of  removal. 
Control  by  the  courts.  Question  of  the  Presi- 
dent's liability  to  the  law.  His  political  re- 
sponsibility   63-64 

Article  HI — The  National  Judiciary  and  Its  Powers. 

Section  I — Provides  for  the  national  courts  and  se- 
cures the  tenures  of  their  judges, 64 

"Judicial  power."  Power  to  punish  for  con- 
tempt of  court,   65 

Powers  of  Congress  in  relation  to  the  Supreme 
Court;  to  the  inferior  courts;  to  the  terri- 
torial courts 65-^ 

Section  //—Defines  the  judicial  power  of  the  United 
States : 
[Par.   i] — The  cases  and  controversies  to  which 

it  extends   enumerated.    66 

Cases  "in  law,"  "in  equity," 66-67 

"Arising  under  this  Constitution,"  etc.  The 
Basis  of  the  Right  of  the  Courts  to  Pass 
UPON  THE  Validity  of  Legislative  Acts 
UNDER  THE  Constitution,  67 


xviii  Table  of  Contents 

PAG« 
Appeals    from    State    courts    to    the    Supreme 
Court.    The  25th  Section  of  the  Act  of  1789, 

as  amended 68-69 

"Cases  of  admiralty  and  maritime  jurisdiction,"        69 
"Controversies."     "Controversies  to  which  the 
United  States  shall  be  a  party."    "Controver- 
sies between  two  or  more  States."     "Contro- 
versies   between    a    State    and    citizens    of 

another  State."     Illustration 69-70 

Controversies  "between  citizens  of  different 
States."  The  law  enforced  in  these.  "Citi- 
zens,"      70-7^ 

[Par.  2] — The    original    jurisdiction    of    the    Su- 
preme Court.    Marbury  v.  Madison,  7^-7^ 

Effect  of  Amendment  VII, 72 

[Par.  3] — Superseded  by  Amendment  VI 72 

'Section  III — Defines  treason  and  its  punishment : 

[Par.  i] — Treason  defined.     Method  of  proof,  ..   71-72 
"Levying  war."     "Adhering."     "Aid  and  com- 
fort."   "Overt  act."    Liability  of  conspirators,        73 
[Par.  2] — Power  of  Congress  to  declare  the  pun- 
ishment of  treason.     A  restriction,   73 

Article  IV — Interstate  and  Federal  Relations. 

Section  I — Provides   for   reciprocal   "full   faith   and 

credit"  among  the  States  in  certain  matters,  ...         74 

Section  II — Lays  down  rules  of  interstate  comity : 
[Par.  i]— The  privileges  and  immunities  of  citi- 
zens in  the  several  States.    Rights  of  residence,        75 
[Par.  2] — Interstate  extradition.    "Crime."   Char- 
acter of  the  duty  of  the  Governors  under  this 

paragraph,     75-76 

[Par.  3] — The  rendition  of  fugitive  slaves.     An 
obsolete  paragraph 76 


Table  of  Contents  xix 

PAGE 

Section  III — Provides  for  the  case  of  new  States  and 
territories : 
[Par.  i] — The  admission  of  new   States.     "This 

Union,"    76 

[Par.  2] — Congress's  control  of  the  public  lands,  76-77 
Source  and  extent  of  its  power  to  govern  terri- 
tories.    Incorporated  territories.     Conquered 
territories,     yj 

Section  IV — Establishes  a  guaranty  by  the  United 
States  to  every  State  of  a  republican  form  of 
government  and  security  against  invasion  and 

domestic  violence,    77-78 

"United  States."     "Republican  form  of  govern- 
ment,          78 

AftTictE  V — The  Amending  Power. 

"The  Congress,"  etc.  "Two-thirds  of  both  houses." 
"Legislatures."  The  usual  procedure  of  amend- 
ment. Two  exceptions  to  the  power.  Its  broad 
scope,    78-80 

Article  VI — National  Supremacy. 

[Par.   i] — Adoption  of  the  debt  of  the   Confed- 
eration, required  by  the  Law  of  Nations, 80-Bi 

[Par.  2] — The  "Supremacy  Clause."     Its  great 

importance,    81 

"In  pursuance  of  the  Constitution,"  82 

[Par.  3] — Oath  of  fidelity  to  the  Constitution  re- 
quired of  all  officers,  both  National  and  State,  .         82 
Duties  laid  by  the   Constitution  on   State  offi- 
cers.    How  these  may  be  increased  by  Con- 
gress.    A  possible  development,    82-83 

"Religious  test."     "Oath  or  affirmation,"   83 


XX  Table  of  Contents 

Article  VII— The  Schedule,  84-85 

The  First  Ten  Amendments.    A  Biu,  of  Rights  Limiting 
THE  National  Government: 

Article  I. 

PAG* 

Freedom  of  worship,  speech,  press,  assembly,  and  peti- 
tion,             86 

"An  establishment  of  religion."  "The  free  exercise 
thereof,"    86 

"Freedom  oe  Speech"  and  "ruEss,"  not  license  of 
speech  and  press,   86-87 

Source  and  scope  of  Congress's  power  over  speech  and 
press,    87-88 

Limits  to   right  of  assembly  and   petition.      Implication 

of  latter  right,  88 

Article  II. 

The  right  to  bear  arnTs,   88 

"Free  State.''     "To  bear  arms,''   88 

Article  III. 

Restrictions  on  the  power  of  tlie  Government  to  quarter 
troops 89 

Article  IV. 

Security  of  persons,  houses,  papers  and  effects  against 

unreasonable  searches  and  seizures,   89 

"Houses."     "Papers  and  eflfects."     "Unreasonable," 89-90 

Article  V. 

Guaranties  to  accused  persons  and  others  (see  also 
Articles  VI  and  VIIl  following)  :  Grand  jury,  no 
second  jeopardy,  no  self-incrimination,  due  process 
of  law,  just  compensation 90 


Table  of  Contents  xxi 

PAGE 

Source  of  these  provisions,  Qo 

"Infamous  crime."  "Presentment  or  indictment." 
"Grand  jury."  "In  time  of  war  or  public  danger." 
"Twice  in  jeopardy."  "Life."  "Nor  be  compelled  in 
any  criminal  case,"  etc 90-92 

"Nor  be  Deprived  of  Life,  Liberty  or  Property  with- 
out Due  Process  of  Law."  Broad  scope  of  the  pro- 
vision         92 

"Liberty."     "Property,"    92-93 

"Due  process  of  law"  in  criminal  cases,  in  civil  actions, 

in  administrative  proceedings.     Deportation,  etc.,  93^94 

"Due  process   of  law  '   as   a  general  limitation   on   the 

legislative  powers  of  Congress 94-95 

The    national    power    of    eminent    domain.      "Taken." 

"Public  use."     "Just  compensation,"   95-96 

Article  VI. 

Further  guaranties  to  accused  persons :  Speedy  trial  by 
jury  in  locality  of  crime,  confrontation,  compulsory 
process  for  obtaining  witnesses,  counsel,  97 

"A  speedy  trial."  "Public  trial."  "State  and  district." 
"Confronted  with  witnesses."  "Assistance  of  coun- 
sel,"       97-96 

Article  VII. 
Trial  by   jury   in   civil   cases    (see   Article   III,   Section 

II,    Paragraph   2 ) 9^ 

Article  VIII. 
Further  guaranties  to  accused  persons :     Excessive  bail 

and  "cruel  and  unusual  punishments"  ruled  out 9® 

Article   IX. 
Unenumerated  rights  of  a  fundamental  character  safe- 
guarded,      ^^'^ 


xxii  Table  of  Contents 

Article  X. 


PAGE 
PA(^ 


The  reserved  powers  of  the  States  and  the  people  safe- 
guarded,              W 

The   States'  Rights  interpretation  of  this  Article;    the 

nationalistic    interpretation.      "States."      "People,"    . .         99 

Article  XI. 

Suits  against  States  by  private  persons  writhdrawn  from 
the  judicial  power  of  the  Unii<^d  States,  too 

"Commenced  or  prosecuted"    (see   Article   III,   Section 

II,  Paragraph  i ) ,   lOO 

When  State  officers  are  liable,   lOO 

Article  XII. 

Method  of  choosing  President  and  Vice-President  by 
the  "College  of  Electors"  altered  (see  Article  II,  Sec- 
tion  III) ,    I0I-I03 

The  War  Amendments:  A  "Bill  of  Rights"  for  the 
negro : 

Article  XIII. 

Abolishes    slavery,    103 

How    the    Amendment    is    construed    by    the    Supreme 

Court,     103-ICM 

Article  XIV. 

Section  i :     Limits  the  States  : 

National  citizenship  defined  and  made  primary.  All 
persons  guaranteed  due  process  of  law  and  equal  prc^- 
tection  of  the  laws  from  the  States 104 

"Subject  to  the  jurisdiction,"    104 

"The  privileges  and  immunities  of  citizens  of  the  United 

States," 104-105 

"Due  process  of  law"  and  State  procedure, 105 


Table  of  Contents  xxiii 

pAoa 

"Due  Process  of  Law"  and  the  "Police  Power"  of 

THE   States,  105-107 

"Equal  Protection  of  the  Laws"  and  State  Legisla- 
tive Powers,   107-108 

Corporations  as  "persons"  under  this  Section,  108 

Sections  2,  3  and  4:    Without  practical  interest  to-day,  loS-iio 
Section  5:     Possible  powers  of  Congress  under,   no 

Article  XV. 

Confers  the  ballot  upon  the  negro.     How  the  Amend- 
ment is   circumvented.     Inaction   of   Congress,    ....iio-ill 

Article  XVL 

The  Income   Tax  Amendment    (see  Article  I,   Section 
VIII,  Paragraph  i),   ni 

Article  XVII. 

Establishes   popular   election   of   Senators    (see   Article 
I,  Section  III,  Paragraph  i), 111-112 

Article  XVIII. 

Establishes   prohibition, 112 

"Intoxicating  liquors."    "Concurrent  power."    (See  also 
Article  V  of  the  original  Constitution),  112-113 

[Article  XIX.] 

Will  extend  the  ballot  to  women.    Adoption  still  pend- 
ing,           113 


"In  the  Constitution  of  the  United  States— the  nrost  won- 
derful instrument  ever  drawn  by  the  hand  of  man— there  is 
a  ccmiprehension  and  precision  that  is  unparalleled ;  and  I  can 
truly  say  that  after  spending  my  life  in  studying  it,  1  still 
daily  find  in  it  some  new  excellence."  J.  William  Johnson,  in 
Elkinson  v.  Deliesseline,  8  Federal  Cases,  393  (1823). 

"When  we  are  dealing  with  words  that  are  also  a  con- 
stituent act,  like  the  Constitution  of  the  United  States,  we 
must  realize  that  they  called  into  life  a  being  the  develop- 
ment of  which  could  not  have  been  foreseen  completely  by 
the  most  gifted  of  its  begetters.  It  was  enough  for  them  to 
realize  or  to  hope  that  they  had  created  an  organism  *  *  *. 
The  case  before  us  must  be  considered  in  the  light  of  our 
whole  experience,  and  not  merely  in  that  of  what  was  said  a 
hundred  years  ago."  J.  Holmes,  in  Missouri  v.  Holland,  U. 
S.  Game  Warden  {April  79,  1920). 

"The  subject  is  the  execution  of  those  great  powers  on 
which  the  welfare  of  a  nation  essentially  depends.  *  ♦  * 
This  provision  is  made  in  a  Constitution  intended  to  endure 
for  ages,  and,  consequently,  to  be  adapted  to  the  various 
crises  of  human  affairs."  Chief  Justice  Marshall  in  McC%l- 
ioch  v.  Maryland,  4  Wlveaton,  316  ( rSig). 


The  Preamble. 

We,  the  people  of  the  United  States,  in 
order  to  form  a  more  perfect  union,  estab- 
lish justice,  insure  domestic  tranquility,  pro- 
vide for  the  common  defense,  promote  the 
general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the 
United  States  of  America, 

While  the  Preamble  is,  strictly  speaking,  no  part 
of  the  Constitution,  it  serves  two  very  important 
ends:  first,  it  indicates  the  source  from  which  the 
Constitution  comes,  from  which  it  derives  its  claim 
to  obedience,  namely,  the  people  of  the  United 
States  as  defined  below  ;  secondly,  it  states  the  great 
objects  which  the  Constitution  and  the  Government 
established  by  it  are  expected  to  promote :  national 
unity,  justice,  peace  at  home  and  abroad,  liberty,  and 
the  general  welfare. 

"We.  the  people  of  the  United  States."  in  other 
words,  We,  the  citizens  of  the  United  States, 
whether  voters  or  non-voters.  In  theory  the  former 
represent  and  speak  for  the  latter ;  actually  from  the 
verv  beginning  of  our  national  history,  the  constant 
tendency  has  been  to  extend  the  voting  right  more 
and  more  widely,  until  to-day.  with  woman's  suf- 
frage a-bout  to  be  established  by  the  addition  of  the 

(I) 


2  The  Constitution 

Nineteenth  Amendment  to  the  Constitution  (see 
p.  113),  the  time  is  at  hand  when  the  terms  voter 
and  citizen  are  to  become  practically  interchangeable 
as  applied  to  the  American  adult.  Two  ideas  have 
aided  this  development:  first,  the  idea  that  every 
citizen  of  a  republican  government  is  entitled  to  an 
immediate  voice  in  the  choice  of  his  representatives; 
secondly,  the  idea  that  a  republican  government  is 
entitled  to  consult  directly  the  interests  and  desires 
of  its  citizens  and  to  have  the  benefit  of  their  views 
obtained  at  first  hand  in  shaping  its  policies. 

Article  I. 
Articles  I,  II,  and  III  provide  the  framework  of 
the   National   Government.      Article   I   defines   the 
legislative  powers  of  the  United  States,   which   it 
vests  in  Congress. 

Section  I. 
All  legislative  powers  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of 
Representatives. 

This  means  that  no  other  branch  of  the  Govern- 
ment except  Congress  may  make  laws. 

Section  II. 
[Far.   I.]   The  House  of  Representatives 
shall  be  composed  of  members  chosen  every 
second   year  by  the   people   of   the   several 


What  It  Means  To-Day  3 

States,  and  the  electors  in  each  State  shall 
have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  State 
legislature. 

The  term  "electors"  here  means  simply  voters. 

[Par.  2.]  No  person  shall  be  a  Representa- 
tive who  shall  not  have  attained  the  age  of 
twenty-five  years,  and  been  seven  years  a 
citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

The  term  "inhabitant"  means  resident.  Custom 
has  also  established  the  rule  that  a  Representative 
shall  be  a  resident  of  the  district  from  which  he  is 
chosen. 

[Par.  3.]  Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several 
States  which  may  be  included  within  this 
Union,  according  to  their  respective  num- 
bers, which  shall  be  determined  by  adding  to 
the  whole  number  of  free  persons,  including 
those  bound  to  service  for  a  term  of  years, 
and  excluding  Indians  not  taxed,  three-fifths 
of  all  other  persons.  The  actual  enumeration 
shall  be  made  within  three  years  after  the 
first  meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  term  of 
ten  years,  in  such  manner  as  they  shall  by  law 
direct.  The  number  of  Representatives 
shall  not  exceed  one  for  every  thirty  thou- 
sand, but  each  State  shall  have  at  least  one 


4  The  Constitution 

Representative ;  and  until  such  enumeration 
shall  be  made,  the  State  of  Nezv  Hampshire 
shall  be  entitled  to  choose  three,  Massachu- 
setts eig-ht.  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five,  New  York 
six,  Ne7.v  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten. 
North  Carolina  five.  South  Carolina  five,  and 
Georgia  three. 

This  paragraph  embodiei;  one  of  the  famous  com- 
promises of  the  Constitution.  The  term  "three- 
fifths  of  all  other  persons"  meant  three-fifths  of 
all  slaves.  Amendment  XIII  has  rendered  this 
clause  obsolete  and  Amendment  XIV,  Section  2,  has 
superseded  it  (see  pages  103  and  108). 

The  basis  of  representation  to-day  is  one  for 
about  every  212  thousand,  and  probably  this  number 
will  l)e  further  increased  in  consequence  of  the 
census  of  1920. 

[Par.  4.]  When  vacancies  happen  in  the 
representation  from  any  State,  the  executive 
authority  thereof  shall  issue  writs  of  election 
to  fill  such  vacancies. 

[Par.  5.]  The  House  of  Representatives 
shall  choose  their  Speaker  and  other  officers, 
and  shall  have  the  sole  power  of  impeach- 
ment. 


What  It  Mkans  To-Day  c 

The  powers  of  the  Speaker  have  varied  greatly  at 
different  times.  They  dep.  d  altogether  upon  the 
rules  of  the  House. 

The  subject  of  impeachment  is  dealt  with  at  the 
end  of  the  next  section. 

Section  III. 

[Par.  I.]  The  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each 
State,  chosen  by  the  legislature  thereof,  for 
six  years ;  and  each  Senator  shall  have  one 
vote. 

This  paragraph  has  Ijeen  superseded  by  the 
recently  adopted  Seventeenth  Amendment  (see 
pp.  111-112). 

[Par.  2.]  Immediately  after  they  shall  be 
assembled  in  consequence  of  the  first  elec- 
tion, they  shall  be  divided  as  equally  as  may 
be  into  three  classes.  The  seats  of  the  Sen- 
ators of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year,  of  the  sec- 
ond class,  at  the  expiration  of  the  fourth 
year,  and  of  the  third  class,  at  the  expira- 
tion of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year;  and  if  vacan- 
cies happen  by  resignation  or  otherwise  dur- 
ing the  recess  of  the  legislature  of  any  State, 
the  executive  thereof  may  make  temporary 
appointments  until  the  next  meeting  of  the 


6  The  Constitution 

legislature,  which  shall  then  fill  such  vacan- 
cies. 

This  paragraph  explains  how  it  came  about  that 
one-third  of  the  Senators  retire  every  two  years. 

[Par.  3.]  No  person  shall  be  a  Senator 
who  shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citizen  of 
the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for 
which  he  shall  be  chosen. 

The  term  "inhabitant",  as  we  have  seen,  means 
resident. 

[Par.  4.]  The  Vice-President,  of  the 
United  States  shall  be  President  of  the  Sen- 
ate, but  shall  have  no  vote,  unless  they  be 
equally  divided. 

This  is  the  source  of  the  so-called  "casting  vote" 
of  the  Vice-President,  which  has  been  decisive  on 
more  than  one  critical  occasion.  For  the  rest,  the 
powders  of  the  Vice-President  as  presiding  officer 
depend  upon  the  rules  of  the  Senate. 

[Par.  5.]  The  Senate  shall  choose  their 
other  officers,  and  also  a  President  pro  tem- 
pore in  the  absence  of  the  Vice-President,  or 
when  he  shall  exercise  the  office  of  President 
of  the  United  States. 

See  Article  II.  Section  I,  Paragraph  6;   p.  46. 


What  It  Means  To-Day  7 

[Par.  6.]  The  Senate  shall  have  the  sole 
power  to  try  all  impeachments.  When  sit- 
ting for  that  purpose,  they  shall  be  on  oath 
or  affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall 
preside :  and  no  person  shall  be  convicted 
without  the  concurrence  of  two-thirds  of  the 
members  present. 

Impeachments  are  charges  of  misconduct  in 
office,  and  are  comparable  to  presentments  or  in- 
dictments by  a  grand  jury.  They  are  voted  by 
the  House  of  Representatives  by  a  majority  vote, 
that  is,  a  majority  of  a  quorum  ( see  Section  V, 
Paragraph  1,  below). 

The  persons  subject  to  impeachment  are  "civil 
officers  of  the  United  States"  (see  Article  II.  Section 
IV;  p.  63),  which  term  does  not  include  members 
of  the  House  or  the  Senate  (see  Article  I,  Section 
VI.  Paragraph  2  ;  p.  14).  who.  however,  are  subject 
to  discipline  and  expulsion  by  their  respective  houses 
(  see  Section  V,  Paragraph  2  ;  p  .  1 1 ) . 

The  charge  of  misconduct  must  amount  to  a 
charge  of  "treason,  bribery,  or  other  high  crimes 
and  misdemeanors"  (see  Article  II.  Section  IV; 
p.  63).  But  the  term  "high  crimes  and  misde- 
meanors" is  used  in  a  broad  sense,  being  equivalent 
to  lack  of  that  "good  behavior"  which  is  specifically 
required  of  judges  (see  Article  III.  Section  I;    p. 


8  The  Constitution 

64).  It  is  for  the  House  of  Representatives  to 
judge  in  the  first  instance  and  for  the  Senate  to 
judge  finally  whether  alleged  misconduct  on  the 
part  of  a  civil  officer  of  the  United  States  falls  with- 
in the  terms  "high  crimes  and  misdemeanors",  and 
from  this  decision  there  is  no  appeal 

In  1803  a  Federal  District  Judge  was  removed 
from  office  by  the  process  of  impeachment  on  ac- 
count of  drunkenness  and  other  unseemly  conduct 
on  the  bench.  The  defense  of  insanity  was  urged 
in  his  behalf,  but  unsuccessfully. 

When  trying  an  impeachment  the  Senate  sits  as 
a  court,  but  has  full  power  in  determining  its  pro- 
cedure and  is  not  required  to  disqualify  its  mem- 
bers for  alleged  prejudice  or  interest.  However, 
"when  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside",  the  idea  being,  of 
course,  to  guard  against  any  danger  of  unfairness 
on  the  part  of  the  Vice-President,  who  would  suc- 
ceed to  the  President  if  the  latter  were  removed. 

[Par.  7.]  Judgment  in  cases  of  impeach- 
ment shall  not  extend  further  than  to  re- 
moval from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States ;  but  the 
party  convicted  shall,  nevertheless,  be  liable 
and  subject  to  indictment,  trial,  judgment, 
and  punishment,  according  to  law. 


What  It  Means  To-Day  9 

There  have  been  several  convictions  upon  im- 
peachment in  the  course  of  our  national  history. 
Sometimes  judgment  has  extended  simply  to  re- 
moval from  office,  sometimes  to  disqualification  for 
further  office-holding  under  the  National  Govern- 
ment. 

Since  conviction  upon  impeachment  does  not  con- 
stitute "jeopardy  of  life  or  limb''  (see  Amendment 
V ;  pp.  90-92 ) .  a  person  ousted  from  office  by  proc- 
ess of  impeachment  may  still  be  reached  by  the  or- 
dinary penalties  of  the  laws  for  his  ofifense,  if  it  was 
of  a  penal  character. 

Section  IV. 

[Par.  I.]  The  times,  places,  and  manner 
of  holding  elections  for  Senators  and  Rep- 
resentatives shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the 
Congress  may  at  any  time  by  law  make  or 
alter  such  regulations,  except  as  to  the  places 
of  choosing  Senators. 

To  a  great  extent  State  legislation  under  this  para- 
graph has  been  superseded  to-day  by  that  of  Con- 
gress. Elections  for  members  of  Congress  take 
place  on  the  Tuesday  following  the  first  Monday 
of  November  of  the  even  years,  in  districts,  "com- 
posed of  a  contiguous  and  compact  territory",  each 
district  choosing  one  Representative  by  a  plurality 


lo  The  Constitution 

of  the  votes  cast,  which  votes  must  be  by  written  or 
printed  ballot,  or  by  voting  machine  where  this 
method  is  authorized  by  State  law. 

[Par.  2.]  The  Congress  shall  assemble  at 
least  once  in  every  year,  and  such  meeting 
shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  law  appoint  a  different 
day. 

No  such  law  has  ever  been  passed,  with  the  re- 
sult that  a  new  Congress,  though  elected  in  Novem- 
ber of  one  year,  does  not  assemble  "in  regular  ses- 
sion" until  December  of  the  next,  that  is,  more  than 
a  year  after  its  election.  In  recent  years,  however, 
the  President  has  frequently  summoned  a  new  Con- 
gress in  special  session  some  time  after  the  March 
4th  succeeding  its  election  '(see  Article  II,  Section 
III;   pp.  59-60). 

Section  V. 

[Par.  I.]  Each  house  shall  be  the  judge 
of  the  elections,  returns,  and  qualifications 
of  its  own  members,  and  a  majority  of  each 
shall  constitute  a  quorum  to  do  business ; 
but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such  man- 
ner, and  under  such  penalties,  as  each  house 
may  provide. 


What  It  Means  To-Day  u 

If  either  house  doubts  the  qualifications  of  any- 
one who  claims  to  be  a  member  it  may  suspend  him 
pending  investigation,  by  such  vote  as  the  rules  of 
the  house  require.  Moreover,  the  "qualifications" 
here  referred  to  do  not  consist  exclusively  of  the 
qualifications  prescribed  in  Sections  II  and  III  above 
for  Representatives  and  Senators,  respectively. 
"Congress",  it  has  been  said,  "may  impose  dis- 
qualifications for  reasons  that  appeal  to  the  com- 
mon judgment  of  mankind."  Thus  in  1900  the 
House  of  Representatives  excluded  a  Representa- 
tive from  Utah  as  "a  notorious,  demoralizing  and 
audacious  violator  of  State  and  Federal  laws  relat- 
ing to  polygamy  and  its  attendant  crimes." 

[Par.  2.]  Each  house  may  determine  the 
rules  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and  with  the  concur- 
rence of  two-thirds,  expel  a  member. 

This  paragraph  describes  the  power  of  each  house 
over  its  members  once  they  have  been  "seated", 
that  is,  have  been  recognized  as  duly  qualified 
members. 

[Par.  3.]  Each  house  shall  keep  a  journal 
of  its  proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  parts  as 
may  in  their  judgment  require  secrecy,  and 
the  ayes  and  nays  of  the  members  of  either 
house  on  any  question  shall,  at  the  desire  of 


12  The  Constitution 

one-fifth  of  those  present,  be  entered  on  the 
journal. 

The  obvious  purpose  of  this  paragraph  is  to  make 
it  possible  for  the  people  to  watch  the  official  con- 
duct of  their  Representatives  and  Senators. 

[Par.  4.]  Neither  house,  during  the  ses- 
sion of  Congress,  shall,  without  the  consent 
of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting. 

In  addition  to  the  powers  enumerated  above, 
each  house  also  possesses  certain  other  powers  which 
are  implied  by  the  fact  that  it  is  a  deliberative  body 
or  which  are  inherited,  as  it  were,  from  the  Parlia- 
ment of  Great  Britain.  Each  house  may  pass  reso- 
lutions, either  separately  or  "concurrently"  with  the 
other  house,  with  a  view  to  expressing  its  opinion  on 
any  subject  whatsoever,  and  may  create  committees 
to  deal  with  the  matters  which  come  before  it.  Also, 
each  house  has  certain  powers  of  a  judicial  char- 
acter over  outsiders.  If  a  stranger  rudely  inter- 
rupts or  physically  obstructs  the  proceedings  of  one 
of  the  houses,  he  may  be  arrested  and  brought  be- 
fore the  bar  of  the  house  involved  and  punished  by 
the  vote  of  its  members  "for  contempt" ;  but  if 
the  punishment  takes  the  form  of  imprisonment  it 
terminates  with  the  session  of  the  house  imposing 


What  It  Means  To-Day  13 

it.  Also  each  house  has  full  power  to  authorize 
investigations  by  committees  looking  to  possible 
legislation  by  Congress,  which  committees  have  the 
right  to  examine  witnesses  and  take  testimony ;  and 
if  such  witnesses  prove  recalcitrant,  they  too  may 
be  punished  "for  contempt",  though  in  this  case 
the  punishment  is  nowadays  imposed,  under  an  Act 
of  Congress  passed  in  1853,  by  the  Supreme  Court 
of  the  District  of  Columbia,  for  "misdemeanor". 

Section  VI. 

[Par.  I.]  The  Senators  and  Representa- 
tives shall  receive  a  compensation  for  their 
services,  to  be  ascertained  by  law  and  paid 
out  of  the  Treasury  of  the  United  States. 
They  shall,  in  all  cases  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from 
arrest,  during  their  attendance  at  the  session 
of  their  respective  houses,  and  in  going  to 
and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  house  they  shall 
not  be  questioned  in  any  other  place. 

"Treason,  felony,  and  breach  of  the  peace"  cover 
violations  of  State  laws  as  well  as  National.  The 
provision  concerning  "speech  or  debate"  removes 
every  restriction  upon  freedom  of  utterance  on  the 
floor  of  the  houses  by  members  thereof  except  that 
supplied  by  their  own  rules  of  order. 


14  The  Constitution 

[Par.  2.]  No  Senator  or  Representative 
shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under 
the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased  during 
such  time ;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member 
of  either  house  during  his  continuance  in 
office. 

Despite  this  paragraph  Presidents  have  fre- 
quently appointed  members  of  the  houses  as  com- 
missioners to  act  in  a  diplomatic  capacity.  The  con- 
stitutionality of  such  a  course  is  open  to  grave  doubt, 
to  say  the  least. 

Section  VII. 

[Par.  I.]  All  bills  for  raising  revenue 
shall  originate  in  the  House  of  Representa- 
tives ;  but  the  Senate  may  propose  or  concur 
with  amendments  as  on  other  bills. 

This  provision  is  practically  without  effect,  as 
the  Senate  may  "amend"'  a  revenue  bill  from  the 
House  by  substituting  an  enitirely  new  measure 
under  the  enacting  clause. 

[Par.  2.]  Every  bill  which  shall  have 
passed  the  House  of  Representatives  and  the 
Senate  shall,  before  it  become  a  law,  be  pre- 
sented to  the  President  of  the  United  States ; 
if  he  approve  he  shall  sign  it,  but  if  not  he 


What  It  Means  To-Day  15 

shall  return  it,  with  his  objections,  to  that 
house  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their 
journal  and  proceed  to  reconsider  it.  If  after 
such  reconsideration  two-thirds  of  that  house 
shall  agree  to  pass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  recon- 
sidered, and  if  approved  by  two-thirds  of 
that  house  it  shall  become  a  law.  But  in  all 
such  cases  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journal  of  each  house 
respectively.  If  any  bill  shall  not  be  re- 
turned by  the  President  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a  law,  in 
like  manner  as  if  he  had  signed  it,  unless  the 
Congress  by  their  adjournment  prevent  its 
return,  in  which  case  it  shall  not  be  a  law. 

"Two-thirds"  of  each  "house"  means,  of  course, 
two-thirds  of  the  same  "house"  which  originally 
passed  the  bill,  that  is,  two-thirds  of  that  "house" 
as  organized  to  do  legislative  business,  which  is  two- 
thirds  of  the  quorum  thereof  (see  Section  V,  Para- 
graph i;   p.  10). 

Before  President  Jackson's  time  it  was  generally 
held  that  the  President  ought  to  reserve  his  veto 
power  for  measures  which  he  deemed  unconstitu- 


1 6  The  Constitution 

tional.     To-day.  however,   the   President  exercises 
this  power  as  he  judges  fit. 

The  veto  power  of  the  President  is  interesting  to- 
day from  two  points  of  view :  first,  that  of  render- 
ing the  growing  power  of  the  President  more  re- 
sponsible (see  Article  II.  Sections  III  and  IV;  pp. 
59-64)  ;  secondly,  that  of  establishing  an  executive 
budget.  Both  these  problems  might  be  solved  to 
some  extent  by  reshaping  the  President's  veto  by 
constitutional  amendment.  Thus  budget  reform 
would  obviously  be  helped  by  extending  the  veto 
to  the  separate  items  of  appropriation  bills  and 
making  it  absolute  in  such  cases.  On  the  other 
hand,  if  the  veto  were  abolished  altogether  in  the 
case  of  acts  of  Congress  repealing  previous  acts 
which  conferred  power  on  the  President  or  his  sub- 
ordinates, powers  thus  conferred  to  meet  an  emer- 
gency could  be  easily  withdrawn  once  the  emer- 
gency was  past. 

[Par.  3.]  Every  order,  resolution  or  vote" 
to  which  the  concurrence  of  the  Senate  and 
House  of  Representatives  may  be  necessary 
(except  on  a  question  of  adjournment)  shall 
be  presented  to  the  President  of  the  United 
States ;  and  before  the  same  shall  take  effect, 
shall  be  approved  by  him,  or  being  disap- 
proved bv  him,  shall  be  repassed  by  two- 
thirds  of  the  Senate  and  House  of  Repre- 


What  It  Means  To-Day  17 

sentatives,  according  to  the  rules  and  limi- 
tations prescribed  in  the  case  of  a  bill. 

The  phrase  "may  be  necessary"  means  necessary 
to  effect  legislation.  Accordingly  "votes"  taken  in 
either  house  in  the  course  of  elaborating  a  legis- 
lative proposition  need  not  be  submitted  to  the 
President,  nor  resolutions  passed  by  either  house 
separately  or  by  both  houses  "concurrently"  with 
a  view  simply  to  expressing  an  opinion  or  to  devis- 
ing a  common  program  of  parliamentary  action  or 
to  directing  the  expenditure  of  money  appropriated 
to  the  use  of  the  two  houses.  (See  also  Article  V; 
pp.  78-79.) 

Section  VIII. 

This  is  the  most  important  section  of  the  Con- 
stitution since  it  describes,  for  the  most  part,  the 
field  within  which  Congress  may  exercise  its  legis- 
lative power,  which  is  also  the  field  to  which  the 
President  and  the  National  Courts  are  in  great  part 
confined. 

Congress's  legislative  powers  may  be  classified  as 
follows:  First,  its  "enumerated"  powers,  that  is, 
those  which  are  defined  rather  specifically  in  para- 
graphs I  to  17,  following;  secondly,  certain  other 
powers  which  also  are  specifically  delegated  in  other 
parts  of  the  Constitution  (see  Section  IV,  above; 
also  Articles  II,  III,  IV,  and  V,  passim,  and  Amend- 


1 8  The  Constitution 

merits  XIII  to  XIX)  ;  thirdly,  its  power  conferred 
by  paragraph  i8,  below,  the  so-called  "coefficient 
clause"  of  the  Constitution,  to  pass  all  laws  "neces- 
sary and  proper"  to  carry  into  execution  any  of  the 
powers  of  the  National  Government;  fourthly, 
certain' inherent  powers,  that  is,  powers  which  be- 
long to  it  simply  because  it  is  the  national  legisla- 
ture. 

In  studying  each  of  the  fi/st  seventeen  paragraphs 
of  this  section,  one  should  always  bear  in  mind  the 
1 8th  paragraph,  for  this  clause  furnishes  each  of 
the  "enumerated"  powers  of  Congress  with  its 
second  dimension,  so  to  speak. 

[Par.  I.]  The  Congress  shall  have  power 
to  lay  and  collect  taxes,  duties,  imposts  and 
excises,  to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the 
United  States :  but  all  duties,  imposts  and 
excises  shall  be  uniform  throughout  the 
United  States. 

Complete  power  of  taxation  is  conferred  upon 
Congress  by  this  paragraph,  as  well  as  the  largest 
measure  of  discretion  in  the  selection  of  purposes 
for  which  the  national  revenues  shall  be  expended. 
This  complete  power  "to  lay  and  collect  taxes"  is, 
however,  later  curtailed  by  the  provision  that  no 
tax  shall  be  levied  on  exports  (see  Section  IX, 
Paragraph  5  :  p.  38).    Also,  since  the  United  States 


What  It  Means  To-Day  19 

guarantees  to  every  State  in  this  Union  a  "repub- 
lican form  of  government"  (see  Article  IV,  Sec- 
tion IV,  below)  Congress  may  not  impair  the  essen- 
tial instruments  of  State  government. 

Furthermore,  Congress  must  levy  its  taxes  in 
one  of  two  ways:  all  "duties,  imposts  and  excises" 
must  be  uniform  throughout  the  United  States, 
while,  on  the  other  hand,  the  burden  of  "direct 
taxes"  must  be  imposed  upon  the  States  in  propor- 
tion to  population  (see  Section  II,  Paragraph  3,  and 
Section  IX,  Paragraph  4;   pp.  3  and  38). 

"Duties"  are  customs  duties.  If  a  certain  article 
imported  from  abroad  is  taxed  5%  at  New  York 
it  must  be  taxed  at  the  same  rate  at  San  Francisco, 
etc. 

"Excises"  are  taxes  upon  the  production,  sale,  or 
use  of  articles;  also  taxes  upon  certain  privileges 
allowed  by  law.  If  the  sale  of  tobacco  is  taxed  in 
Kentucky  it  must  be  taxed  in  all  the  other  States 
and  at  the  same  rate. 

"Imposts"  is  a  general  term  comprehending  both 
duties  and  excises. 

"Direct  taxes"  are  taxes  levied  directly  upon 
property  "because  of  ownership."  In  the  famous 
Income  Tax  Case  of  1895  the  Supreme  Court  ruled 
that  a  general  income  tax  was,  so  far  as  incomes 
derived  from  property  were  concerned,  a  "direct 
tax"  and,  therefore,  one  that  must  be  apportioned 


20  The  Constitution 

according  to  population.  The  effect  of  this  decision 
was  overcome  in  191 3  by  the  adoption  of  the  Six- 
teenth Amendment  (see  p.  m).  More  recently 
the  Supreme  Court  has  declared  that  a  tax  on  in- 
comes must  l)e  regarded  as  a  tax  on  the  use  of  prop- 
erty to  produce  the  income  and  is,  therefore,  in  its 
nature  an  excise  tax.  It  follows  that  income  taxes 
must  be  levied  uniformly  throughout  the  United 
States.  This  does  not  mean,  however,  that  large 
incomes  may  not  be  taxed  at  a  higher  rate  than 
small  incomes.  All  that  it  means  is  that  incomes  of 
the  same  size  must  be  taxed  at  the  same  rate  wher- 
ever they  are  found  within  the  United  States. 

The  Excess  Profits  Tax  is  a  kind  of  income  tax. 

While  the  raising  of  revenue  is  the  primary  pur- 
pose of  taxation  it  does  not  have  to  be  its  only  pur- 
pose. Thus  Congress,  by  laying  dowm  certain  regu- 
lations for  keeping  the  traffic  in  narcotic  drugs  open 
and  above-board  and  thereby  easily  taxable,  has 
brought  this  traffic  under  national  control.  Fur- 
thermore, there  are  some  businesses  which  Con- 
gress may  tax  so  heavily  as  to  drive  them  out  of 
existence,  one  example  being  the  production  of 
white  sulphur  matches,  another  the  sale  of  oleo- 
margarine colored  to  look  like  butter.  Whether 
Congress  has  the  right  to  levy  a  special  tax  upon 
the  products  of  mines  and  factories  employing  child 
labor  is  a  question  now  before  the  Supreme  Court. 


What  It  Mkans  To-Day  21 

(See  also  "Due  process  of  law''  in  connection  with 
Amendment  V  ;    pp.  94-95.) 

[Par.  2.]  To  borrow  money  on  the  credit 
of  the  United  States; 

This  paragraph,  together  with  the  one  just  dis- 
cussed, and  Paragraphs  5  and  6  following  comprise 
what  may  be  called  the  fiscal  powers  of  the  National 
Government.  By  virtue  of  these,  taken  along  with 
the  "necessary  and  proper"  clause  below,  Congress 
has  the  power  to  charter  national  banks,  to  put  their 
functions  beyond  the  reach  of  the  taxing  power  of 
the  States,  to  issue  paper  money  and  confer  upon 
it  the  quality  of  legal  tender  for  debts,  to  tax  the 
notes  of  issue  of  State  banks  out  of  existence,  to 
confer  on  national  banks  the  powers  of  trust  com- 
panies, to  establish  a  "Federal  Reserve  System," 
etc. 

[Par.  3.]  To  regulate  commerce  with  for- 
eign nations  and  among  the  several  States, 
and  with  the  Indian  tribes ; 

"Commerce"  is  traffic,  that  is,  the  buying  and 
selling  of  commodities,  and  includes  as  an  important 
incident  the  transportation  of  such  commodities 
from  buyer  to  seller.  But  the  term  has  also  been 
defined  much  more  broadly.  Thus  in  the  famous 
case  of  Gibbons  v.  Ogden,  Chief  Justice  Marshall 
said:    "Commerce  undoubtedly  is  traffic,  but  it  is 


22  The  Constitution 

something  more — it  is  intercourse'' ;  and  on  the 
basis  of  this  definition  the  Supreme  Court  has  held 
that  the  mere  passage  of  people  from  one  State  to 
another,  as  well  as  the  sending  of  intelligence,  as  by 
telegraph,  from  one  State  to  another,  is  "commerce 
among  the  States." 

"Among  the  States,"  that  is,  involving  more 
States  than  one ;  in  other  words,  interstate  in  con- 
trast to  intrastate  or  local  commerce. 

The  power  "to  regulate"  is  the  power  to  control, 
to  govern,  to  encourage,  to  promote,  and  in  proper 
cases  to  prohibit. 

As  a  matter  of  fact.  Congress  has  exercised  its 
powers  over  interstate  commerce,  for  the  most  part, 
only  over  interstate  transportation,  and  especially 
transportation  by  rail.  But  in  this  field  its  control 
over  commerce  has  developed  tremendously  within 
the  last  few  years. 

Since  the  power  to  regulate  is  the  power  to  pro- 
mote, Congress  may  build  railways  and  bridges,  or 
charter  corporations  and  authorize  them  to  build 
railways  and  bridges ;  and  it  may  vest  such  corpo- 
rations with  the  power  of  eminent  domain  and  ren- 
der their  franchises  immune  from  State  taxation. 
For  the  same  reason,  it  has  the  broadest  discretion 
in  dealing  with  any  sort  of  emergency  which  threat- 
ens to  stop  interstate  transportation. 


What  It  Means  To-Day  23 

Again,  Congress  may  regulate  the  rates  of  trans- 
portation from  one  State  to  another,  or  authorize 
its  agent,  the  Interstate  Commerce  Commission,  to 
do  so.  But  the  rates  set  must  yield  a  fair  return  to 
the  carrier  on  its  property,  since  this  property  is 
being  used  in  the  service  of  the  public,  and  to  com- 
pel its  public  use  without  just  compensation  would 
amount  to  confiscation  ( see  the  "Private  property" 
clause  of  Amendment  V;   pp.  95-96). 

Furthermore,  the  Supreme  Court  has  recently 
held  that  "wherever  the  interstate  and  intrastate 
transactions  of  carriers  are  so  related  that  the  gov- 
ernment of  the  one  involves  the  control  of  the 
other,"  Congress  is  entitled  to  regulate  both 
classes  of  transactions.  In  other  words,  whenever 
circumstances  make  it  "necessary  and  proper"  for 
Congress  to  regulate  local  transportation  in  order 
to  make  its  control  of  interstate  transportation 
really  effective,  it  may  do  so.  Likewise,  the  Court 
has  held  that  the  Interstate  Commerce  Commission, 
and  therefore,  Congress,  may  take  account  of  the 
intention  of  a  consignee  to  send  certain  goods  out- 
side the  State  and  on  that  ground  regulate  the  trans- 
portation of  such  goods  to  him  from  points  within 
the  State.  By  the  logic  of  these  cases  Congress,  it 
would  seem,  could  govern  every  stage  in  the  pur- 
chase and  sale  of  goods  finally  intended  for  a  pur- 
chaser in  a  State  different  from  that  of  the  prcn 


24  The  Constitution 

ducer,  or,  indeed,  govern  sales  generally  in  the  case 
of  commodities  the  local  and  interstate  traffic  in 
which  are  not  practically  distinguishable. 

But  not  only  may  Congress  regulate  the  act  of 
transportation  from  one  State  to  another,  but  it 
may  also  regulate  the  instrmnents  and  agents 
thereof.  Thus,  by  the  Federal  Employers'  Liability 
Act  of  1908,  Congress  enacted  the  rule  of  liability 
for  railways  engaged  ii.  interstate  commerce  to 
those  of  their  employees  who  are  injured  while  em- 
ployed in  connection  with  such  commerce.  In  ap- 
plying this  act  the  Supreme  Court  has  held  a  rail- 
way liable  to  an  employee  who  was  injured  while 
carrying  bolts  to  be  used  in  repairing  a  bridge 
which  was  a  part  of  a  highway  of  interstate  com- 
merce. The  logic  of  this  case,  too,  if  applied  to 
"commerce"  in  the  sense  of  traffic,  might  lead  to 
interesting  results. 

As  was  indicated  above,  occasions  may  arise  when 
the  power  to  regulate  "commerce  among  the 
States"  becomes  the  power  to  prohibit  it.  Thus  the 
safety  of  interstate  commerce  as  a  whole  may  re- 
quire that  certain  portions  of  it  be  prohibited;  as, 
for  instance,  the  shipment  of  high  explosives,  ex- 
cept under  stringent  safeguards.  Moreover,  Con- 
gress may  prevent  the  facilities  of  interstate  com- 
merce from  being  abused  and  made  instruments 
of   evil,    either   material   or   moral.      Thus,    it  has 


What  It  Means  To-Day  25 

prohibited  the  transportation  of  women  from  one 
State   to   another   for   immoral   purposes;   also   of 
lottery  tickets  from  one  State  to  another;  also  of 
impure  foods.     On  the  other  hand,  it  was  recently 
held  that  Congress  may  not  close  the  channels  of 
interstate  commerce   to  the   products   of   factories 
and  mines  which  employ  children  under  other  than 
stated  conditions.     In  this  case  the  Court  felt  that 
the  act  of  Congress  was  aimed  not  at  a  traffic  evil 
in   itself,  as   for  example,   the  interstate  traffic  in 
lottery  tickets,  but  at  a  matter  exclusively  within 
the    control    of    the    States,  namely,  the    employ- 
ment of  certain  kinds  of  labor  in  the  business  of 
manufacturing,  etc.     The  Court's  view  of  the  mat- 
ter is,  at  least,  supported  by  the  fact  that  while  the 
vast   majority   of   people   regard   the   lottery   busi- 
ness as  utterly  bad,  they  are  quite  willing  to  pur- 
chase   or    sell    the    products    of    child    labor,    even 
though  they  condemn  child  labor  itself.     In  other 
words,  the  connection  between  the  employment  of 
child  labor  and  traific  in  the  products  of  such  labor 
seems  too  indirect,  too  remote,  to  be  taken  account 
of;   and  this  was  exactly  the  view  of  the  Court. 

Congress's  power  to  prohibit  foreign  commerce, 
as  by  embargoes  or  restrictive  tariffs,  etc.,  is  ab- 
solute, since  in  this  field  the  national  power  over 
commerce  is  supplemented  by  the  national  control 
over  our  foreign  relations. 


26  The  Constitution 

The  power  of  Congress  to  regulate  interstate 
and  foreign  commerce  is  exclusive,  and,  therefore, 
may  not  be  exercised  by  the  States  to  any  extent, 
even  though  Congress  has  not  acted.  The  para- 
graph under  discussion  is,  accordingly,  not  only  a 
source  of  great  power  to  the  National  Government, 
but  it  is  also  an  important  restriction  on  State  legis- 
lative power. 

Since  the  States  may  not  tax  interstate  or  for- 
eign commerce,  they  may  not  tax  the  carrying 
of  goods  from  one  State  to  another,  nor  the  re- 
ceipts from  such  carriage,  nor  the  negotiation  of 
sales  when  the  orders  are  to  be  filled  by  goods 
brought  from  other  States.  Also,  they  may  not 
tax  goods  imported  from  abroad  so  long  as  these 
remain  in  the  original  package  in  the  hands  of  the 
importer.  The  States  may,  however,  tax  the  in- 
struments' of  interstate  commerce  at  a  fair  valua- 
tion as  so  much  property  within  the  State  and 
receiving  its  protection.  It  is,  of  course,  for  the 
Supreme  Court  to  say  finally  whether  a  State  tax 
infringes  upon  Congress's  power  to  regulate  com- 
merce. 

States  have  also  their  so-called  "police  power" ; 
that  is,  the  power  "to  promote  the  health,  safety, 
morals  and  general  welfare."  Laws  passed  in 
exercise  of  this  power  may  often  affect  commerce 
incidentally,  but  if  the  resultant  burden  is  not  "ma- 


What  It  Means  To-Day  27 

terial"  such  laws  are  sustained  by  the  Court.  Thus, 
a  State  may  require  all  engineers  on  railways,  even 
those  running  interstate  trains,  to  be  tested  for 
color-blindness,  or  may  forbid  the  sale  of  oleo- 
margarine colored  to  imitate  butter,  applying  the 
law  to  oleomargarine  brought  from  without  the 
State,  and  illustrations  might  be  multiplied.  But 
it  is  always  within  the  power  of  Congress  to  remove 
even  such  incidental  burdens  upon  interstate  com- 
merce, while,  to  repeat  what  was  said  above,  no 
"direct"  burdens  may  be  imposed  by  State  laws 
upon  interstate  commerce  even  in  the  absence  of 
Congressional  regulation.  Thus,  a  State  may  not 
regulate  rates  of  transportation  in  the  case  of  goods 
being  brought  from  or  carried  to  points  outside  the 
State;  and  while  it  may  regulate  rates  for  goods 
bound  simply  from  one  point  to  another  within  its 
own  borders,  yet  even  such  rates  are  subject  to  be 
set  aside  by  national  authority  if  they  discriminate 
asrainst  or  burden  interstate  commerce. 

Furthermore,  such  rates  are  brought  by  the  "due 
process  of  law"  clause  of  the  Fourteenth  Amendment 
under  the  control  of  the  rule  stated  above  for  rates 
set  by  Congress  and  the  Interstate  Commerce  Com- 
mission ;  that  is,  they  must  yield  a  fair  return  to  the 
carrier  on  the  value  of  its  property  (see  p.  105). 

[Par.  4.]   To  establish  an  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  sub- 


28  The  Constitution 

ject  of  bankruptcies  throughout  the  United 
States ; 

Congress  having  exercised  its  power  under  both 
clauses  of  this  paragraph,  the  States  have  no  longer 
any  power  to  deal  with  the  subject  matter  of 
either.     (See  Amendment  XIV,  Section  i  ;   p.  104.) 

[Par.  5.]  To  coin  money,  regulate  the 
value  thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures; 

[Par.  6.]  To  provide  for  the  punishment 
of  counterfeiting  the  securities  and  current 
coin  of  the  United  States; 

Paragraph  2  above. 

[Par.  7.]  To  establish  post-offices  and 
post-roads ; 

Congress's  powers  under  this  and  the  "commerce 
clause"  together  would  enable  it  to  take  over  the 
railroad  and  telegraph  lines,  in  return  for  "just 
compensation"  (see  Amendment  V,  at  p.  95). 

From  its  power  to  establish  post-offices  the  Na- 
tional Government  derives  its  power  to  carry  the 
mails,  and  this  power  carries  with  it  the  power  to 
protect  the  mails  and  their  quick  and  efficient  dis- 
tribution, as  well  as  the  power  to  prevent  the  postal 
facilities  from  being  used  for  evil  purposes.  (See 
Amendment  I ;   pp.  86-88. ) 


What  It  Means  To-Day  29 

[Par.  8.]  To  promote  the  progress  of 
science  and  useful  arts  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  dis- 
coveries ; 

By  virtue  of  this  clause  Congress  has  enacted 
various  patent  and  copyright  laws  and  has  author- 
ized international  agreements  on  the  subject  of 
copyrights  and  patents. 

[Par.  9.]  To  constitute  tribunals  inferior 
to  the  Supreme  Court; 

See  Article  III,  Section  I ;  p.  64. 

[Par.  10.]  To  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas  and 
ofifenses  against  the  law  of  nations; 

By  virtue  of  this  and  the  following  paragraph 
Congress  is  made  the  final  authority  in  defining  the 
Law  of  Nations  for  the  United  States. 

[Par.  II.]  To  declare  war,  grant  letters 
of  marque  and  reprisal,  and  make  rules  con- 
cerning captures  on  land  and  water; 

This  paragraph,  together  with  Paragraphs  12, 
13,  14,  15,  16  and  18  following,  and  Paragraph  i 
of  Section  II  of  Article  II,  comprise  what  are  or- 
dinarily called  the  "war  powers"  of  the  United 
States.     It  must  be  remembered  that  even  before 


30  The  Constitution 

the  Constitution  was  adopted  the  American  people 
had  asserted  their  right  to  wage  war  as  a  unit. 
It  has  accordingly  been  suggested  that  the  Na- 
tional Government  does  not  get  its  power  to  wage 
war  from  the  Constitution,  but  that  it  possesses  it 
as  an  inherent  attribute  of  national  sovereignty, 
and  that  what  the  above-mentioned  clauses  of  the 
Constitution  do  is  simply  to  regulate  in  some  par- 
ticulars the  exercise  of  this  power.  From  whatever 
source  derived,  the  power  of  the  National  Govern- 
ment to  wage  war  and,  therefore,  to  take  measures 
to  wage  it  successfully  is  a  pow^r  of  vast  scope,  even 
as  it  affects  the  American  people,  while  as  against 
the  enemies  of  the  United  States  it  is  limited  only 
by  the  rules  of  International  Law.  (See  further 
Article  II,  Section  II,  Paragraph  I,  and  Section  III; 
pp.  49  and  60.)  This  power,  moreover,  is  ex- 
clusive in  the  National  Government,  for  the 
States  have  no  power  to  wage  war  "unless  actu- 
ally invaded  or  in  such  danger  as  will  not  admit  of 
delay"  (see  Section  X,  Paragraph  3;   p.  41). 

Congress's  power  "to  declare  war"  is  the  same 
power  which,  in  1789,  belonged  to  the  King  of 
Great  Britain.  It  was  rightly  felt  that  in  a  repub- 
lican government  this  power  must  be  lodged  with 
all  the  representatives  of  the  people.  Nevertheless, 
since  that  date  the  President  alone  has  come  to  be 
recognized  as  also  having  a  kind  of  war-declaring 


What  It  Means  To-Day  31 

power.  Thus,  if  a  nation  actually  begins  war  upon 
the  United  States,  the  President  may  recog-nize 
the  fact  and  take  such  action  as  the  situation  de- 
mands and  the  acts  of  Congress  allow.  Also,  the 
President,  because  of  his  initiative  in  the  field  of 
foreign  relations,  may  easily  produce  a  situation 
leading  logically  to  war.  Yet,  in  both  these  cases 
the  President's  action  is  necessarily  provisional 
only;  the  final  issue  lies  with  Congress,  which  con- 
trols the  purse,  and  so  far  as  the  Constitution  is 
concerned.  Congress  is  entirely  free  to  choose 
whether  it  will  back  up  the  President's  action 
or  not. 

The  question  has  recently  been  raised  whether 
Congress  may  declare  peace.  Unquestionably,  it 
may  repeal  its  authorization  of  hostilities,  which  is 
all  that  is  meant  legally  by  the  term  "war";  and 
while  such  repeal  would  not  bring  about  peace  in  a 
way  to  bind  the  other  party  to  the  war,  it  would  pro- 
duce a  technical  condition  of  peace  so  far  as  the 
United  States  was  concerned,  of  which  both  the 
courts  and  the  Executive  would  have  to  take  ac- 
count. 

"Letters  of  marque  and  reprisal"  were  formerly 
issued  to  privateers. 

[Par.  12.]  To  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  use 
shall  be  for  a  longer  term  than  two  years ; 


32  The  Constitution 

[Par.  13.]  To  provide  and  maintain  a 
navy; 

Congress  may  raise  military  and  naval  forces 
either  by  authorizing  a  call  for  volunteers  or  by 
conscription.  Compulsory  military  service  does  not 
violate  the  Thirteenth  Amendment,  or  any  other 
part  of  the  Constitution.  Liability  to  it  is  one 
of  the  responsibilities  of  national  citizenship.  (See 
Amendment  XIII ;   p.  103.) 

In  its  measures  for  raising  and  supporting  arm- 
ies and  for  providing  a  navy,  Congress  may  dic- 
tate the  purposes  for  which  these  may  be  used. 
But  so  far  as  the  statutes  do  not  limit  his  dis- 
cretion, and  so  long  as  he  does  not  exceed  the  ap- 
propriations voted  by  Congress,  the  President  may 
employ  the  armed  forces  of  the  United  States  as 
may  seem  to  him  best  for  the  purpose  of  enforcing 
the  laws  of  the  United  States  and  of  protecting  the 
rights  of  American  citizens  abroad  under  Inter- 
national Law. 

The  limitation  of  appropriations  for  the  army 
to  two  years  reflects  the  American  fear  of  stand- 
ing armies.  For  the  navy,  on  the  other  hand, 
building  programs  may  be  laid  down  to  run  over 
several  years. 

[Par.  14.]  To  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval 
forces ; 


What  It  Means  To-Day  33 

It  is  by  virtue  of  this  paragraph  that  Congress 
has  enacted  the  so-called  Articles  of  War  and 
Articles  for  the  Government  of  the  Navy,  which 
constitute  the  basis  of  military  and  naval  discipline. 

[Par.  15.]  To  provide  for  calling  forth 
the  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrections,  and  repel  invasions ; 

[Par.  16.]  To  provide  for  organizing, 
arming  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States, 
reserving  to  the  States  respectively  the  ap- 
pointment of  the  officers,  and  the  authority 
of  training  the  militia  according  to  the  dis- 
cipline prescribed  by  Congress ; 

For  many  years  the  militia  was  regarded  as  a 
purely  State  affair.  By  the  National  Defense  Act 
of  June  3,  1916,  however,  "the  militia  of  the  United 
States"  is  defined  as  consisting  "of  all  able-bodied 
male  citizens  of  the  United  States"  and  all  similar 
declarants,  between  the  ages  of  18  and  25.  The 
same  act  also  provides  for  the  nationalization  of 
the  National  Guard,  which  is  recognized  as  con- 
stituting a  part  of  the  militia  of  the  United  States, 
and  provides  for  its  being  drafted  into  the  mili- 
tary service  of  the  United  States  in  certain  contin- 
gencies. The  act  rests  on  the  principle  that  the 
right  of  the  States  to  maintain  a  militia  is  always 
subordinate  to  the  power  of  Congress  "to  raise  and 


34  The  Constitution 

support  armies."     (See  also  Section  lo,  Paragraph 

3;  P-4I-) 

[Par.  17.]  To  exercise  exclusive  legisla- 
tion in  all  cases  whatsoever  over  such  dis- 
trict (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  States  and  the 
acceptance  of  Congress,  become  the  seat  of 
the  Government  of  the  United  States,  and  to 
exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  legislature  of 
the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings;  and 
This  paragraph  is,  of  course,  the  source  of  Con- 
gress's power  to  govern  the  District  of  Columbia. 

[Par.   18.]   To  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into 
execution    the    foregoing    powers,    and    all 
other  powers  vested  by  this  Constitution  in 
the  Government  of  the  United  States,  or  in 
any  department  or  officer  thereof. 
What  is  a  "necessary  and  proper"  law  under  this 
paragraph?     This  question  arose  in  the  great  case- 
of  McCulloch  v.  Maryland,  and  was  answered  by 
Chief    Justice    Marshall    thus :      "Let    the    end    be 
legitimate,  let  it  be  within  the  scope  of  the  Con- 
stitution,   and    all    means    which    are    appropriate, 
which  are  plainly  adapted  to  that  end.  which  are 
not  prohibited,  but  consist  with  the  letter  and  spirit 
of  the  Constitution,  are  constitutional."     The  basis 


What  It  Means  ToDay  35 

of  this  declaration  was  furnished  by  three  ideas: 
First,  that  the  Constitution  was  ordained  by  the 
people  and  so  was  intended  for  their  benefit;  sec- 
ondly, that  it  was  "intended  to  endure  for  ages  to 
come  and,  consequently,  to  be  adapted  to  the  vari- 
ous crises  of  human  forces"  ;  and  thirdly,  that  while 
the  National  Government  is  one  of  enumerated 
powers,  it  is  sovereign  as  to  those  powers.  Mar- 
shall's view  was  opposed  by  the  theory  that  the 
Constitution  was  a  compact  of  sovereign  States 
and  so  should  be  strictly  construed,  in  the  inter- 
est of  safeguarding  the  powers  of  those  States. 
From  this  point  of  view  the  "necessary  and  proper" 
clause  was  urged  to  be  a  limitation  on  Congress's 
powers,  and  was  interpreted  as  meaning,  in  sub- 
stance, that  Congress  could  pass  no  laws  except 
those  which  were  "absolutely  necessary"  to  carry 
into  effect  the  powers  of  the  General  Government. 
It  is  hardly  necessary  to  say  that  Marshall's  doc- 
trine is  today  the  accepted  doctrine.  (See  also 
Article  VI,  Paragraph  2,  and  Amendment  X ;  pp. 
81-82  and  99. ) 

This  clause  of  the  Constitution  is  also  important 
because  of  the  large  measure  of  control  which  it 
gives  Congress  over  the  powers  of  the  other  de- 
partments of  government.  It  was  the  theory  of  the 
framers  of  the  Constitution  that  ours  should  be  a 
government  founded  on  law. 


36  The  Constitution 

Among  the  powers  of  the  National  Government 
are  certain  ones  that  have  sometimes  been  assigned 
to  it  simply  on  the  score  that  they  are  powers  "inher- 
ent in  a  national  government,"  or  "inherent  in 
sovereignty" ;  for  instance,  the  power  to  acquire 
and  govern  territories,  the  power  to  exclude  aliens, 
and,  as  we  have  just  seen,  the  power  to  carry 
on  war. 

Section  IX. 

The  purpose  of  this  section  is  to  impose  certain 
limitations  on  the  powers  of  Congress. 

[Par.  I.]  The  migration  or  importation 
of  such  persons  as  any  of  the  States  now 
existing  shall  think  proper  to  admit  shall  not 
be  prohibited  by  the  Congress  prior  to  the 
year  one  thousand  eight  hundred  and  eight, 
but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for 
each  person. 
This  paragraph  referred  to  the  African  slave 
trade  and  is,  of  course,  now  obsolete. 

[Par.    2.]   The   privilege   of   the   writ   of 
habeas  corpus  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion  the 
public  safety  may  require  it. 
The  writ  of  habeas  corpus  is,  perhaps,  the  most 
important  single  safeguard  of  personal  liberty.     It 
dates  from,  at  latest,  the  17th  Century,  and  it  is  in- 
teresting   to    note    that    the    Constitution    simply 


What  It  Means  To-Day  37 

assumes  that,  of  course,  it  will  be  a  part  of  the  law 
of  the  land.  The  importance  of  the  writ  is  that  it 
enables  anybody  who  has  been  put  under  personal 
restraint  to  secure  immediate  inquiry  by  the  courts 
into  the  cause  of  his  detention,  and  if  he  is  not 
detained  for  good  cause,  his  liberty. 

At  the  time  of  the  Civil  War  President  Lincoln 
temporarily  suspended  the  writ  without  author- 
ization of  Congress,  but  admitted  the  likelihood 
that  he  had  violated  the  Constitution,  as  undoubt- 
edly he  had.  Subsequently  Congress  passed  a  law 
authorizing  him  to  suspend  the  writ  in  certain 
cases. 

The  danger  of  a  suspension  of  the  writ  is,  of 
course,  that  the  officers  of  the  Government  will 
make  unwarranted  arrests.  The  occasions  when  the 
privilege  of  the  writ  may  be  suspended  are  clearly 
occasions  when  "the  public  safety  may  require"  that 
the  Government  should  have  the  power  to  make 
arrests  on  suspicion,  which  they  would,  perhaps, 
find  it  difficult  to  back  up  by  evidence. 

[Par.  3.]      No  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed. 

A  "bill  of  attainder"  is  a  legislative  act  charging 
somebody  with  treason  and  pronouncing  a  penalty 
upon  such  person,  usually  the  penalty  of  death. 
Such   acts   were   occasionally   passed   by   the   Eng- 


''Hfli  7'"; 


38  The  Constitution 

lish  Parliament  down  to  the  close  of  the  17th 
century  (see  also  Article  III,  Section  III,  Para- 
graph 2;   p.  73)- 

An  "ex  post  facto  law"  is  a  law  which  imposes 
penalties  retroactively;  that  is,  upon  acts  already 
done,  or  which  increases  the  penalty  for  such 
acts. 

[Par.  4.]  No  capitation  or  other  direct  tax 
shall  be  laid,  unless  in  proportion  to  the  cen- 
sus or  enumeration  hereinbefore  directed 
to  be  be  taken. 

A  "capitation"  tax  is  a  poll  tax. 
"Direct  tax''   was   defined   under   Section  VIII, 
Paragraph  i,  above. 

[Par.  5.]  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  State. 

"Exported"  means  exported  to  a  foreign  country. 

[Par.  6.]  No  preference  shall  be  given  by 
any  reeulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  another; 
nor  shall  vessels  bound  to  or  from  one  State 
be  obliged  to  enter,  clear  or  pay  duties  in 
another. 

[Par.  7.]  No  money  shall  be  drawn  from 
the  Treasury  but  in  consequence  of  appro- 
priations made  by  law ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  ex- 
penditures of  all  public  money  shall  be  pub- 
lished from  time  to  time. 


What  It  Means  To-Dav  39 

This  paragraph,  by  the  support  it  lends  to  Con- 
gress's control  of  the  purse,  also  lays  down  one  of 
the  most  important  safeguards  of  the  Constitution. 
The  official  whose  business  it  is  to  see  that  it  is  lived 
up  to  is  the  Comptroller  of  the  Treasury. 

[Par.  8.]  No  title  of  nobility  shall  be 
granted  by  the  United  States ;  and  no  person 
holding-  any  office  of  profit  or  trust  under 
them  shall,  without  the  consent  of  the  Con- 
gress, accept  of  any  present,  emolument, 
office  or  title  of  any  kind  whatever  from  any 
king,  prince  or  foreign  State. 

Section  X. 
The  purpose  of  this  section  is  to  impose  certain 
restrictions  on  the  States,  principally  in  the  interest 
of  giving  the  National  Government  exclusive 
control  in  the  field  of  foreign  relations,  of  war,  of 
currency  and   of   commercial   regulation. 

[Par.  I.]  No  State  shall  enter  into  any 
treaty,  alliance  or  confederation;  grant  let- 
ters of  marque  and  reprisal;  coin  money, 
emit  bills  of  credit ;  make  anything  but  gold 
and  silver  coin  a  tender  in  payment  of  debts; 
pass  any  bill  of  attainder,  ex  post  facto  law 
or  law  impairing  the  obligation  of  contracts, 
or  grant  any  title  of  nobility. 

A  "treaty"  is  dififerent  from  an  "agreement"  (see 
Paragraph  3).     The  purpose  of  an  agreement  is 


40  The  Constitution 

the  performance  of  a  specific  act;  the  purpose  of 
a  treaty  is  the  estabHshment  of  a  permanent  con- 
dition of  things  or  the  setting  up  of  a  rule  of  action 
which  will  operate  until  the  treaty  comes  to  an  end. 

"Bills  of  credit"  are  bills  based  on  the  credit  of 
the  State. 

A  "law  impairing  the  obligation  of  contracts" 
is  a  law  weakening  the  contract  in  some  way.  The 
clause  was  framed  more  especially  for  the  purpose 
of  preventing  the  States  from  passing  laws  to  re- 
lieve debtors  of  their  legal  obligation  to  pay  their 
debts,  the  power  to  afford  such  relief  having  been 
transferred  to  the  National  Government  (see  Sec- 
tion VIII,  Paragraph  4;  p.  27).  Later,  the  Su- 
preme Court  under  Chief  Justice  Marshall  extended 
the  protection  of  the  clause  to  public  grants,  first  of 
land,  then  of  charters  to  corporations.  But  even 
with  this  extension  the  clause  no  longer  interferes 
seriously  with  the  power  of  the  States  to  protect  the 
public  health,  safety,  and  morals,  or  even  that  larger 
interest  which  is  called  the  "general  welfare",  for 
the  simple  reason  that  the  State  has  no  right  to 
bargain  away  this  power.  Thus  the  mere  fact  that 
a  corporation  has  a  charter  enabling  it  to  manu- 
facture intoxicating  beverages  will  not  protect  it 
from  the  operation  of  a  prohibition  enactment. 
Similarly,  a  contract  between  two  persons  by  which 
they  agree  to  buy  and  sell  intoxicating  beverages 


What  It  Means  To-Day  41 

would   be  immediately   cancelled  by   a  prohibition 
law  going  into  effect. 

[Par.  2.]  No  State  shall,  without  the  con- 
sent of  Congress,  lay  any  imposts  or  duties 
on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspec- 
tion laws ;  and  the  net  produce  of  all  duties 
and  imposts,  laid  by  any  State  on  imports  or 
exports,  shall  be  for  the  use  of  the  Treasury 
of  the  United  States ;  and  all  such  laws  shall 
be  subject  to  the  revision  and  control  of  the 
Congress. 

"Imports"  and  "exports"  refer  to  goods  brought 
from  or  destined  to  foreign  countries.  A  tax  on 
imports  while  they  are  still  in  the  original  package 
and  in  the  hands  of  the  importer  is  prohibited  by 
this  clause. 

[Par.  3.]    No  State  shall,  without  the  con- 
sent of  Congress,  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with 
another  State  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded  or  in 
such  imminent  danger  as  will  not  admit  of 
delay. 
Does  the  National  Guard  consist  of  "troops"  in 
the  sense  of  this  clause?     The  authors  of  the  Na- 
tional Defense  Act  of   191 6  evidently  thought  so. 
(See  Section  VTII.  Paragraphs  15  and  16:   p.  33.) 


42  The  Constitution 

Article  II. 

This  article  makes  provision  for  the  executive 
power  of  the  United   States,  which  it  vests  in  a 

single  individual,  the  President. 

...   .  'i  .....; 
Section  I. 

[Par.  I.]  The  executive  power  shall  be 
vested  in  a  President  of  the  United  States  of 
America.  He  shall  hold  his  office  during  the 
term  of  four  years,  and  together  with  the 
Vice-President,  chosen  for  the  same  term, 
be  elected  as  follows : 

"The  executive  power"  is  primarily  the  power 
and  duty  of  the  President  to  "take  care  that  the 
laws  be  faithfully  executed"  (see  Section  III;  p. 
59).  In  addition,  however,  certain  other  powers 
are  conferred  upon  the  President  in  the  following 
paragraphs,  powers  which  in  1789  were  part  of  the 
prerogative  of  the  British  monarch. 

The  President's  term  of  four  years  begins  on 
March  4  of  the  year  following  each  leap-year,  be- 
cause March  4,  1789,  was  the  date  which  the  old 
Congress  of  the  Confederation  set  for  the  Constitu- 
tion to  go  into  effect. 

It  will  be  noticed  that  the  Constitution  makes  no 
provision  regarding  the  re-election  of  a  President. 
The   understanding   which   limits   any    individual's 


What  It  Means  To-Day  43 

tenure  of  the  office  to  two  terms  rests  exclusively 
upon  custom. 

[Par.  2.]  Each  State  shall  appoint,  in  such 
manner  as  the  legislature  thereof  may  direct, 
a  number  of  electors,  equal  to  the  whole 
number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Con- 
gress ;  but  no  Senator  or  Representative,  or 
person  holding  an  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed 
an  elector. 

This  and  the  following  paragraph  provide  for 
the  so-called  "Electoral  College".  It  was  supposed 
that  the  members  of  this  College  would  exercise 
their  individual  judgments  in  their  choice  of  a 
President  and  Vice-President,  but  sinct  1796  the 
Electors  have  been  no  more  than  party  dummies. 
The  intervention  of  the  College  in  the  election  of 
the  President  is,  however,  still  a  matter  of  some 
importance,  since  it  permits  the  choice  of  President 
to  be  by  States  rather  than  by  the  country  at  large, 
with  the  result  that  the  successful  candidate  may 
have  considerably  less  than  a  majority,  or  even 
than  a  plurality,  of  the  popular  votes  cast.  Thus, 
suppose  that  New  York  and  Pennsylvania  were  the 
only  two  States  in  the  Union,  and  that  New  York 
with  45  electoral  votes  went  Democratic  by  a  nar- 
row margin,  while  Pennsylvania  with  38  electoral 


44  The  Constitution 

votes  and  with  a  somewhat  smaller  population  than 
New  York  went  overwhelmingly  Republican.  The 
Democratic  candidate  would  be  elected,  though  the 
Republican  candidate  would  have  much  the  larger 
popular  vote. 

Down  to  1832  Presidential  Electors  were  gen- 
erally chosen  by  the  State  legislatures  themselves. 
To-day  they  are  universally  chosen  by  popular  vote 
and,  as  was  implied  above,  on  State-wide  tickets. 

[Par.  3.]  The  electors  shall  meet  in  their 
respective  States  and  vote  by  ballot  for  two 
persons,  of  whom  one  at  least  shall  not  be 
an  inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  list  of  all  the 
persons  voted  for,  and  of  the  number  of 
vote^  for  each;  which  list  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat 
of  government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  Presi- 
dent of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the 
greatest  number  of  votes  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed;  and  if 
there  be  more  than  one  who  have  such  ma- 
jority, and  have  an  equal  number  of  votes, 
then  the  House  of  Representatives  shall  im- 
mediately choose  by  ballot  one  of  them  for 
President;  and  if  no  person  have  a  majority, 


What  It  Mkans  To-Day  45 

then  from  the  five  highest  on  the  Hst  the  said 
House  shall  in  like  manner  choose  the  Presi- 
dent. But  in  choosing  the  President  the 
votes  shall  be  taken  by  States,  the  repre- 
sentation from  each  State  having  one  vote; 
a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the 
States,  and  a  majority  of  all  the  States  shall 
be  necessary  to  a  choice.  In  every  case,  after 
the  choice  of  the  President,  the  person  having 
the  greatest  number  of  votes  of  the  electors 
shall  be  the  Vice-President.  But  if  there 
should  remain  two  or  more  who  have  equal 
votes,  the  Senate  shall  choose  from  them  by 
ballot  the  Vice-President. 

This  paragraph  has  been  superseded  by  Amend- 
ment XII  (see  pp.  101-103). 

[Par.  4.]  The  Congress  may  determine 
the  time  of  choosing  the  electors  and  the  day 
on  w^hich  they  shall  give  their  votes,  which 
day  shall  be  the  same  throughout  the  United 
States. 

Under  the  act  of  Congress  the  Electors  are 
chosen  on  the  Tuesday  following  the  first  Monday 
in  November  of  every  fourth  year,  the  Electors  of 
each  State  meet  and  cast  their  votes  on  the  second 
Mondav  of  the  following  January,  and  Congress 
meets  to  count  the  votes  in  the  Hall  of  the  House 
of  Representatives  at  i  o'clock  P.  M.,  of  the  second 
Wednesday  in  the  ensuing  February. 


46  The  Constitution 

[Par.  5.]  No  person  except  a  natural- 
bom  citizen,  or  citizen  of  the  United  States 
at  the  time  of  the  adoption  of  this  Constitu- 
tion, shall  be  eligible  to  the  office  of  Presi- 
dent; neither  shall  any  person  be  eligible  to 
that  office  who  shall  not  have  attained  to  the 
age  of  thirty-five  years,  and  been  fourteen 
vears  a  resident  within  the  United  States. 

Would  a  person  born  abroad  of  American  parents 
be  eligible  to  the  office  of  President?  This  question 
has  never  been  answered.  (See  the  opening  clause 
of  Section  I  of  the  Fourteenth  Amendment;  p. 
104.) 

Does  "fourteen  years  a  resident  within  the 
United  States"  mean  residence  immediately  pre- 
ceding election  to  office?  This  question  also  has 
never  been  authoritatively  determined. 

[Par.  6.]  In  case  of  the  removal  of  the 
President  from  office,  or  of  his  death,  resig- 
nation, or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall- 
devolve  on  the  Vice-President,  and  the  Con- 
gress may  by  law  provide  for  the  case  of 
removal,  death,  resignation,  or  inability, 
both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  Presi- 
dent, and  such  officer  shall  act  accordingly 
until  the  disability  be  removed  or  a  President 
/  shall  be  elected. 


What  It  Means  To-Day 

By  the  Presidential  Succession  Act  of  1886  Con- 
gress has  provided  that  in  case  of  the  disqualifica- 
tion of  both  President  and  Vice-President  the 
Secretary  of  State  shall  act  as  President  provided 
he  possesses  the  qualifications  laid  down  in  Para- 
graph 5  above;  if  not,  then  the  Secretary  of  the 
Treasury,  etc.  In  any  case,  the  officer  of  the  Cabi- 
net who  acts  as  President  still  retains  his  Cabinet 
post,  since  it  is  by  virtue  of  his  holding  such  post 
that  he  is  called  upon  to  act  as  President. 

Congress  has  never  passed  any  law  for  deter- 
mining when  a  President  is  unable  "to  discharge 
the  powers  and  duties"  of  his  office  so  that  the 
Vice-President  should  take  his  place,  but  there 
is  little  doubt  that  it  might  do  so.  A  recent  sug- 
gestion is  that  this  function  should  be  devolved 
upon  the  Cabinet,  which  being  made  up  of  the 
President's  appointees,  would  probably  be  disposed 
to  give  his  side  of  the  case  fair  consideration. 

Another  question  which  the  first  clause  of  this 
paragraph  leaves  unsettled  is  whether  the  Vice- 
President,  when  he  succeeds  to  ''the  powers  and 
duties  of  the  said  office",  becomes  President.  In 
all  cases  hitherto  the  occasion  of  the  Vice- 
President's  taking  over  the  Presidential  office  has 
been  the  death  of  the  President,  and  the  Vice- 
President  has  promptly  assumed  the  title  of  the 
President  and,   of   course,   has  remained   in   office 


48  The  Constitution 

until  the  end  of  the  term.  Probably  these  prece- 
dents also  settle  the  question  for  those  cases  in 
which  the  Vice-President  might  be  called  upon  to 
discharge  the  duties  of  the  Presidential  office  on 
account  of  the  President's  resignation  or  removal. 
But  surely  it  cannot  have  been  the  intention  of  the 
framers  of  the  Constitution  that  a  President  should 
be  permanently  displaced  for  a  merely  temporary 
disability. 

[Par.  y.\  The  President  shall,  at  stated 
times,  receive  for  his  services  a  compensa- 
tion, which  shall  neither  be  increased  nor 
diminished  during  the  period  for  which  he 
may  have  been  elected,  and  he  shall  not  re- 
ceive within  that  period  any  other  emolu- 
ment from  the  United  States  or  any  of  them. 

Is  the  President's  salary  diminished  by  being 
taxed  by  a  general  income  tax  of  the  National 
Government?  There  is  no  good  reason  why  the 
President  and  other  officers  should  not  discharge  the 
general  duties  of  good  citizenship  unless  their  doing 
so  would  really  hamper  them  in  the  performance  of 
their  official  duties. 

[Par.  8.]  Before  he  enter  on  the  execu- 
tion of  his  office  he  shall  take  the  following 
oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm)  that  I 
will   faithfully  execute  the  office  of   Presi- 


What  It  Means  To-Day  49 

dent  of  the  United  States,  and  will  to  the 
best  of  my  ability  preserve,  protect  and  de- 
fend the  Constitution  of  the  United  States." 

The  fact  that  the  President  takes  an  oath  "to 
preserve  and  protect"  the  Constitution  does  not 
authorize  him  to  exceed  his  own  powers  under  the 
Constitution  on  the  pretext  of  preserving  and  pro- 
tecting it.  The  President  may  veto  a  bill  on  the 
ground  that  in  his  opinion  it  violates  the  Constitu- 
tion, but  if  the  bill  is  passed  over  his  veto,  he  must 
regard  it  as  law  until  it  is  set  aside  by  an  authorita- 
tive judicial  decision,  since  the  power  of  interpret- 
ing the  law,  and  therefore  the  Constitution,  belongs 
to  the  Judicial  Department  of  Government  and  not 
to  the  Executive  Department. 

Section  II. 

[Par.  I.]  The  President  shall  be  Com- 
mander-in-Chief of  the  Army  and  Navy  of 
the  United  States,  and  of  the  militia  of  the 
several  States  when  called  into  the  actual 
service  of  the  United  States  ;  he  may  require 
the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments, 
upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for 
offenses  against  the  United  States,  except  in 
cases  of  impeachment. 


50  The  Constitution 

The  power  of  the  President  as  Commander-in- 
Chief  is  primarily  that  of  military  command  in  war 
time,  and  is  no  greater  for  being  vested  in  the 
President  than  it  would  be  if  it  were  vested  in  any 
other  person.  Since,  however,  it  is  vested  by  the 
Constitution  in  the  President,  it  may  not  be  trans- 
ferred to  another  person  by  Congress.  Incidentally, 
the  Commander-in-Chief  possesses,  as  against  the 
persons  and  property  of  enemies  of  the  United 
States  encountered  within  the  theatre  of  military 
operations,  all  the  powers  allowed  a  military  com- 
mander in  such  cases  by  the  Law  of  Nations. 
President  Lincoln's  famous  Proclamation  of  Eman- 
cipation rested  upon  this  ground.  It  was  effective 
within  the  theatre  of  military  operations  while  the 
war  lasted,  but  no  longer.  (See  Article  IV,  Sec- 
tion III,  Paragraph  2,  and  Section  IV;   pp.  76-78.) 

"The  principal  officers"  "of  the  executive  de- 
partments" have,  since  Washington's  day,  com- 
posed the  President's  Cabinet,  a  body  utterly  un- 
known to  the  Constitution.  They  are  invariably 
of  the  President's  own  party  and  loyalty  to  the 
President  is  an  indispensable  qualification,  al- 
though, of  course,  such  loyalty  may  not  be  carried 
to  the  extent  of  violating  the  law. 

It  has  been  frequently  suggested,  once  by  a 
joint  committee  of  Congress,  that  the  members  of 
the  Cabinet  should  be  given  seats  on  the  floors  of 


What  It  Means  To-Day  51 

Congress,  and  permitted  to  speak  there.  There  is 
obviously  nothing  in  the  Constitution  which  stands 
in  the  way  of  this  being  done  at  any  time. 

A  "reprieve"  suspends  the  penalties  of  the  law; 
a  "pardon"  remits  them. 

"Offenses  against  the  United  States"  are  offenses 
against  the  national  laws,  not  State  laws. 

Pardons  may  be  absolute  or  conditional  and  may 
be  conferred  upon  specific  individuals  or  upon 
classes  of  offenders,  as  by  amnesty;  a  special  par- 
don, however,  has  to  be  formally  accepted  by  the 
person  to  whom  it  is  proffered  in  order  to  be  ef- 
fective. Pardons  may  issue  at  any  time  after  the 
offense  pardoned  has  been  actually  committed  but 
not  before  the  offense  has  been  committed,  for  that 
would  be  to  give  the  President  a  power  to  set  the 
laws  aside,  that  is,  a  dispensing  power. 

It  is  sometimes  said  that  a  pardon  "blots  out  of 
existence  the  guilt"  of  the  offender,  but  such  a  view 
is  absurd.  A  pardon  cannot  qualify  a  man  for  a 
post  of  trust  from  which  those  convicted  of  crime 
are  by  law  excluded.  In  such  a  case  the  pardoned 
man  is  in  precisely  the  same  situation  as  a  man 
who  has  served  his  sentence.  The  law  will  punish 
him  no  further  for  his  past  offense,  but  neither  will 
it  ignore  altogether  the  fact  that  he  committed  it. 
Although  Congress  may  not  interfere  with  the 
President's  exercise  of  the  pardoning  ix)wer,  it  may 


52  The  Constitution 

itself,  under  the  "necessary  and  proper"  clause, 
enact  amnesty  laws  remitting  penalties  incurred 
under  the  national  statutes. 

[Par.  2,  CI.  I.]  He  shall  have  power,  by 
and  with  the  advice  and  consent  of  the  Sen- 
ate, to  make  treaties,  provided  two-thirds  of 
the  Senators  present  concur; 

It  is  usual  to  regard  the  process  of  treaty-making 
as  falling  into  two  parts,  negotiation  and  ratifica- 
tion, and  to  assign  the  former  to  the  President  ex- 
clusively and  the  latter  exclusively  to  the  Senate. 
In  fact,  however,  it  will  be  observed,  the  Constitu- 
tion makes  no  such  division  of  the  subject,  but  the 
President  and  the  Senate  are  associated  throughout 
the  entire  process  of  "making''  treaties.  Origin- 
ally, accordingly,  Washington  tried  to  take  coun- 
sel with  the  Senate  even  regarding  the  negotiation 
of  treaties,  but  he  early  abandoned  this  method 
of  procedure  as  unsatisfactory.  In  1816,  the  Sen- 
ate created  the  Committee  on  Foreign  Relations' 
as  a  standing  committee,  and  through  this  me- 
dium most  Presidents  have  kept  rather  closely  in 
touch  with  Senatorial  sentiment  regarding  pending 
negotiations.  Moreover,  ratification  also  belongs 
to  the  President,  only  he  may  not  ratify  a  treaty 
with  the  result  of  "making"  it,  unless  the  Senate 
by  a  two-thirds  vote  of  the  members  present — not 


What  It  Means  To-Day  53 

necessarily  a  quorum — advises  such  ratification  and 
consents  to  it.  And  since  the  Senate  may  or  may 
not  consent,  it  may  consent  conditionally,  stating 
its  conditions  in  the  form  of  amendments  to  the 
proposed  treaty  or  reservations  to  the  proposed  act 
of  ratification,  the  difference  between  the  two  being, 
that  whereas  amendments,  if  accepted  by  the  Presi- 
dent and  the  other  party  or  parties  to  the  treaty, 
change  it  for  all  parties,  reservations  merely  limit 
the  obligations  of  the  United  States  thereunder. 
Amendments  are  accordingly  resorted  to  in  the  case 
of  bilateral  treaties,  and  reservations  in  the  case  of 
international  treaties,  like  the  League  of  Nations 
Covenant.  Of  course,  if  the  President  is  dissatis- 
fied with  the  conditions  laid  down  by  the  Senate  to 
ratification  he  may  refuse  to  proceed  further  with 
the  matter. 

The  power  to  make  treaties  is  bestowed  upon  the 
United  States  in  general  terms  and  extends  to  all 
proper  subjects  of  negotiation  between  nations,  but 
since  a  treaty  to  which  the  United  States  is  party 
is  both  an  international  compact  and  "law  of  the 
land"  it  may  not  override  specific  provisions  of 
the  Constitution.  Therefore,  it  may  not  change  the 
character  of  the  Government  which  is  established 
by  the  Constitution  nor  take  away  its  powers.  The 
powers  of  the  States,  on  the  other  hand,  of  them- 
selves set  no  limit  to  the  treaty-making  power,  any 


54  The  Constitution 

more  than  to  any  other  power  of  the  National  Gov- 
ernment. (See  Article  VI,  Paragraph  2,  and 
Amendment  X;   pp.  81-82  and  99.) 

How  broad  the  scope  of  the  treaty-making  power 
is,  is  well  illustrated  by  the  recent  treaty  between 
the  United  States  and  Canada  providing  for  the 
reciprocal  protection  of  migratory  birds  which 
make  seasonal  flights  from  the  one  country  to  the 
other.  Congress  has  passed  a  law  putting  this  treaty 
into  effect  and  authorizing  the  Secretary  of  Agricul- 
ture to  draw  up  regulations  to  govern  the  hunting 
of  such  birds,  any  violation  of  these  regulations  to 
be  subject  to  certain  penalties.  Both  the  treaty  and 
the  law  have  just  been  sustained  by  the  Supreme 
Court,  the  latter  as  a  law  "necessary  and  proper"  to 
put  the  treaty  into  effect. 

How  is  a  treaty  enforced?  Being  "law  of  the 
land"  the  provisions  of  a  treaty  may,  if  it  was 
the  design  of  the  treaty-making  body  to  put  them 
into  effect  without  reference  to  Congress,  be  en- 
forced in  court  like  any  other  law  when  private 
claims  are  based  upon  them ;  and  by  the  President, 
when  the  other  contracting  sovereignty  bases  a 
claim  upon  them.  An  example  of  the  former  case 
would  be  where  an  alien  claimed  the  right  to  own 
land  in  the  United  States  or  to  engage  in  business 
under  the  clause  of  a  treaty  between  the  United 
States  and  his  home  country.     An  instance  of  the 


What  It  Means  To-Day  5 


D 


latter  would  be  a  demand  by  the  other  government 
for  the  extradition  from  the  United  States  of  a 
fugitive  from  justice.  However,  it  frequently 
happens  that  treaty  provisions  contemplate  supple- 
mentary action  by  Congress,  as  did,  for  instance, 
the  treaty  with  Canada  just  referred  to;  and  this 
is  necessarily  the  case  where  money  is  needed  to 
carry  a  treaty  into  effect  (see  Article  I,  Section  IX, 
Paragraph  7;  p.  38).  Hence  the  question  arises 
whether  Congress  is  obliged  to  carry  out  a  treaty 
which  it  alone  may  carry  out.  The  answer  is  that 
it  is  not  legally  obliged  to  do  so,  since  the  Con- 
stitution generally  leaves  it  full  discretion  as  to 
whether  or  not  it  shall  exercise  its  powers.  But 
morally  it  would  be  obliged  to  carry  out  the  pledges 
of  the  United  States  duly  entered  into  unless  in  the 
specific  situation  before  it  it  would  be  morally  justi- 
fied in  not  doing  so. 

Treaties  of  the  United  States  may  be  terminated 
in  accordance  with  their  own  provisions  or  by 
agreement  with  the  other  contracting  party;  or  as 
"law  of  the  land"  they  may  be  abrogated  by  act 
of  Congress,  but  such  abrogation  still  leaves  the 
question  of  their  international  obligation  outstand- 
ing. 

Besides  treaties  proper,  the  President  frequently 
negotiates  agreements  with  other  governments  which 


56  The  Constitution 

are  not  referred  to  the  Senate  for  its  advice 
and  consent.     These  are  of  two  kinds : 

Those  which  he  is  authorized  by  Congress  to 
make,  and  so  rank  as  acts  of  Congress,  such  as 
reciprocity  conventions;  those  which  he  makes  on 
his  own  initiative. 

The  latter  are  usually  temporary  understandings 
and  look  toward  the  early  completion  of  a  formal 
treaty.  Sometimes,  however,  their  scope  ap- 
proaches that  of  regular  treaties,  as  for  example 
the  Lansing-Ishii  agreement  of  1917,  which  was 
effected  by  an  exchange  of  notes  between  the  Sec- 
retary of  State  of  the  United  States  and  a  diplo- 
matic representative  of  the  Mikado.  Such  agree- 
ments can  be  regarded  only  as  announcements  of 
policy  by  the  Administration  entering  into  them,  and 
as  imposing  no  legal  obligation  of  any  sort  upon  the 
United  States  or  any  of  its  organs  of  government. 

[Par.  2,  CI.  2.]  And  he  shall  nominate, 
and,  by  and  with  the  advice  and  consent  of 
the  Senate,  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,  judges  of  the 
Supreme  Court  and  all  other  officers  of  the 
United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which 
shall  be  established  by  law : 

Except  the  President  and  the  Vice-President  all 
civil  officers  of  the  United  States  are  appointive  and 


What  It  Means  To-Day  57 

fall  into  two  classes,  the  so-called  "Presidential 
officers"  and  "inferior  officers". 

The  steps  of  appointment  in  the  first  class  are, 
first,  their  nomination  by  the  President;  secondly, 
their  appointment  "by  and  with  the  advice  and 
consent  of  the  Senate" ;  thirdly,  their  commis- 
sioning, which  is  also  by  the  President  (see  Sec- 
tion III;   p.  59). 

Although  Congress  has  not  the  power  to  appoint 
officers  it  has  the  right  to  lay  down  their  qualifica- 
tions, but  some  choice  must  be  left  to  the  appoint- 
ing power.  Thus  the  Civil  Service  Act  leaves  the 
appointing  officer  the  right  to  select  from  among 
those  who  have  best  sustained  the  tests  of  fitness 
imposed  by  the  act. 

The  offices  of  "ambassador",  "public  minister" 
and  "consul"  are  recognized  by  the  Law  of  Nations, 
and  the  President  may  nominate  to  them  (or  in  a 
vacancy  appoint  temporarily),  as  occasion  arises  in 
our  intercourse  with  foreign  nations,  but  Congress 
may  lay  down  the  qualifications  for  such  officers. 

Besides  "ambassadors"  and  "public  ministers" 
there  has  sprung  up  in  the  course  of  time  a  class 
of  "personal  agents"  of  the  President,  in  whose 
appointment  the  Senate  does  not  participate. 
Theoretically  these  do  not  have  diplomatic  quality, 
but  if  their  identity  is  known  they  will  be  ordin- 
arily accorded  it  in  the  countries  to  which  they  are 


^8  The  Constitution 

sent.  If  such  agents  act  simply  as  observers  for 
the  President  or  are  dispatched  to  communities  or 
governments  without  standing  at  International 
Law,  they  are  legitimate  enough.  But  resort  to 
them  should  not  be  carried  to  such  an  extent  as  to 
defeat  the  evident  purpose  of  the  Constitution  to 
lodge  the  important  diplomatic  business  of  the 
United  States  with  representatives  of  the  United 
States  in  whose  appointment  the  Senate  has  par- 
ticipated. 

''Shall  be  established  by  law":  All  civil  offices 
of  the  United  States  except  those  of  President, 
Vice-President,  Judges  of  the  Supreme  Court,  Am- 
bassadors. Public  Ministers  and  Consuls  rest  ex- 
clusively on  acts  of  Congress. 

[Par.  2,  CI.  3.]  But  the  Congress  may  by 
law  vest  the  appointment  of  such  inferior 
officers,  as  they  think  proper,  in  the  Presi- 
dent alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

"Inferior  officers"  for  the  most  part  are  officers 
subordinate  to  the  heads  of  departments,  but  many 
classes  of  such  officers  are  still  appointed  by  the 
President  with  the  advice  and  consent  of  the  Senate 
because  Congress  has  never  vested  their  appoint- 
ment in  the  President  alone  or  in  the  heads  of  de- 
partments.    It  is  an  interesting  question  whether 


What  It  Means  To-Day  59 

the  judges  of  "inferior  courts"  are  "inferior  of- 
ficers" within  the  sense  of  this  clause.  If  so,  Con- 
gress might  vest  their  appointment  in  the  Justices 
of  the  Supreme  Court, 

[Par.  3.]  The  President  shall  have  power 
to  fill  up  all  vacancies  that  may  happen  dur- 
ing the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at  the  end 
of  their  next  session. 

"Happen''  in  this  connection  means  "happen  to 
exist" ;  otherwise  if  a  vacancy  existed  on  account 
of  inaction  of  the  Senate  it  would  have  to  continue 
throughout  the  recess,  and  in  this  way  the  work 
of  government  might  be  greatly  impeded. 

Section  III. 

He  shall  from  time  to  time  give  to  the 
Congress  information  of  the  state  of  the 
Union,  and  recommend  to  their  considera- 
tion such  measures  as  he  shall  judge  neces- 
sary and  expedient;  he  may,  on  extraordi- 
nary occasions,  convene  both  houses,  or 
either  of  them,  and  in  case  of  disagreement 
between  them  with  respect  to  the  time  of  ad- 
journment, he  may  adjourn  them  to  such  time 
as  he  shall  think  proper ;  he  shall  receive 
ambassadors  and  other  public  ministers ;  he 
shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  all  the  officers 
of  the  United  States, 


6o  The  Constitution 

The  duty  conferred  by  the  opening  clause  of  this 
section  has  in  recent  years  developed,  at  the  hands 
of  President  Roosevelt  and  President  Wilson,  into 
a  tremendous  power  of  legislative  leadership.  The 
President's  duty  under  this  clause  does  not  extend 
to  the  imparting  of  information  which  in  the  public 
interest  should  be  kept  secret,  a  matter  of  which 
the  President  himself  is  final  judge. 

The  President  has  frequently  summoned  Con- 
gress into  what  is  known  as  Special  Sessions.  His 
power  to  adjourn  the  Houses  has  never  been  exer- 
cised. 

The  power  to  "receive  ambassadors  and  other 
public  ministers"  includes  the  power  to  dismiss  them 
for  sufficient  cause;  and  the  exercise  of  the  latter 
power  may,  as  in  the  recent  case  of  Count  Berns- 
torff,  result  in  a  breach  of  diplomatic  relations, 
leading  eventually  to  war.  The  same  power  also 
carries  with  it  the  power  to  recognize  new  govern- 
ments or  to  refuse  them  recognition,  also  a  very 
important  power  sometimes,  as  was  shown  in  the 
case  of  President  Huerta  of  Mexico.  Finally,  it 
may  be  said  that  it  is  the  President's  power  under 
this  clause  taken  together  with  his  power  in  con- 
nection with  treaty  making  and  with  the  appoint- 
ment of  the  diplomatic  representatives  of  the  United 
States  that  gives  him  his  large  initiative  in  deter- 
mining the  foreign  policies  of  the  United  States. 


What  It  Means  To-Day  6i 

The  President,  be  it  noted,  does  not  enforce  the 
laws  himself,  but  sees  that  they  are  enforced,  and 
this  is  so  even  in  the  case  of  those  laws  which 
confer  powers  upon  the  President  directly  rather 
than  upon  some  head  of  department  or  bureau. 

Because  of  his  duty  "to  take  care  that  the  laws 
be  faithfully  executed",  the  President  has  the  right 
to  take  any  necessary  measures  which  are  not  for- 
bidden by  statute  to  protect  against  impending  dan- 
ger  those   great   interests   which   are   entrusted   by 
the  Constitution  to  the  National  Government.     He 
may  order  a  marshal  to  protect  a  Justice  of  the 
Supreme  Court  whose  life  has  been  threatened,  and 
his  order  will  be  treated  by  the  courts  as  having 
the  force  of  law.     He  may  dispatch  troops  to  points 
at  which  the  free  movement  of  the  mails  and  of 
interstate   commerce   is   being   impeded   by  private 
combinations,  or  through  the  Department  of  Justice 
he  may  turn  to  the  courts  and  ask  them  to  use  their 
power  of  injunction  to  forbid  such  combinations. 
In  the  same  way  he  may  use  the  army  and  navy 
to  protect  American  rights  abroad.    In  the  language 
of  the  Supreme  Court,  his  duty  is  not  limited  "to 
the  enforcement  of  acts  of  Congress  or  of  treaties 
of   the   United    States   according   to  their  express 
terms."  but  includes  "the  rights,  duties  and  obliga- 
tions growing  out  of   the  Constitution  itself,   our 
international  relations,  and  all  the  protection  im- 


62  Thk  Constitution 

plied  by  the  nature  of  the  Government  under  the 
Constitution". 

The  President's  executive  powers  have  been  fur- 
ther enlarged  in  recent  years  by  the  growing-  prac- 
tice on  the  part  of  Congress  of  passing  laws  in 
general  terms,  which  laws  have  to  be  supplemented 
by  regulations  drawn  up  by  the  head  of  a  depart- 
ment under  the  direction  of  the  President.  Under 
the  legislation  which  Congress  passed  during  the 
World  War  the  following  powers,  among  others, 
were  vested  in  the  President :  to  control  absolutely 
the  transportation  and  distribution  of  foodstuffs ; 
to  fix  prices ;  to  license  importation,  exportation, 
manufacture,  storage,  and  distribution  of  the 
necessaries  of  life ;  to  operate  the  railroads ;  to 
issue  passports ;  to  control  cable  and  telegraph 
lines ;  to  declare  embargoes ;  to  determine  priority 
of  shipments ;  to  loan  money  to  foreign  govern- 
ments ;  to  enforce  prohibition ;  to  redistribute  and 
regroup  the  executive  bureaus.  In  carrying  these 
powers  into  effect  the  President's  authorized  agents 
have  put  in  force  a  huge  number  of  executive  regu- 
lations having  the  force  of  law.  It  used  to  be  said 
that  "Congress  may  not  delegate  its  powers",  but 
the  rule  nowadays  has  become  that  Congress  may 
not  delegate  its  powers  unless  it  is  convenient  to 
do  so.  As  the  field  of  national  power  expands  and 
the  problems  confronting  the  National  Government 


What  It  Means  To-Day  63 

become  more  complex  we  must  expect  more  and 
more  of  this  sort  of  legislation. 

Ex-President  Taft  says  that  the  President's  duty 
to  "commission  all  the  officers  of  the  United  States" 
is  the  most  onerous  "manual  labor"  thrust  upon 
him  by  the  Constitution. 

Section  IV. 

The  President,  Vice-President  and  all  civil 
officers  of  the  United  States  shall  be  re- 
moved from  office  on  impeachment  for  and 
conviction  of  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 

Besides  their  liability  to  impeachment  (see  Sec- 
tion III,  Paragraphs  6  and  7,  above),  the  President's 
subordinates  are  liable  to  him,  since  as  the  law  now 
stands,  and  has  generally  stood  from  the  beginning 
of  the  National  Government,  he  has  a  practically 
unrestricted  power  of  removal.  They  are  also  re- 
sponsible to  the  courts  in  various  ways.  Thus,  an 
order  of  the  President  himself  not  in  accordance 
with  law  will  be  set  aside  by  the  courts  if  a  case  in- 
volving it  comes  before  them.  Also,  a  subordinate 
of  the  President  may  be  prohibited  by  writ  of  in- 
junction from  doing  a  threatened  illegal  act  which 
might  lead  to  irreparable  damage,  or  be  compelled 
by  writ  of  mandamus  to  perform  a  duty  definitely 
required  by  law,  such  suits  being  usually  brought  in 


64  The  Constitution 

the  Supreme  Court  of  the  District  of  Columbia. 
Finally,  by  common  law  principles,  a  subordinate  of 
the  President  is  personally  liable  under  the  ordinary 
law  for  any  act  done  in  excess  of  authority,  nor  will 
an  order  of  the  President  exonerate  him  in  such  a 
case.  The  extent  of  the  President's  own  liability 
to  the  ordinary  law.  while  he  is  clothed  with  of- 
ficial authority,  is  a  matter  of  some  doubt.  Im- 
peachment aside,  his  pi'incipal  responsibility  seems 
to  be  simply  his  accountability,  and  that  of  his  party, 
to  the  people  on  election  day.  (See  also  Article  I, 
Section  VII,  Paragraph  2;   pp.  14-16.) 

Article  HI. 

This  article  completes  the  framework  of  the 
National  Government  by  providing  for  "the 
judicial  powder  of  the  United  States". 

Section  I. 

The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The 
judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation  which  shall 
not  be  diminished  during  their  continuance 
in  office. 


What  It  Means  To-Day  65 

"Judicial  power''  is  the  power  to  decide  "cases" 
and  "controversies"  in  conformity  with  law  and 
by  the  methods  established  by  the  usages  and  prin- 
ciples of  law. 

Like  "executive  power,"  judicial  power  implies 
certain  incidental  powers,  as  for  example  the  power 
to  punish  for  contempt  of  court ;  but  this  power 
may  be  regulated  in  the  case  of  the  national  courts 
by  act  of  Congress. 

Although  the  Supreme  Court  is  provided  for  by 
the  Constitution,  its  organization  rests  upon  an  act 
of  Congress,  but  having  been  once  established  it 
cannot  be  abolished  by  act  of  Congress,  although  its 
size  may  at  any  time  be  thus  enlarged. 

The  "inferior  courts"  covered  by  this  Section 
comprise  today  the  nine  Circuit  Courts  of  Appeals, 
the  80  or  more  District  Courts,  the  Court  of  Claims, 
and  the  Court  of  Customs  Appeals.  Since  they 
rest  upon  act  of  Congress  alone,  they  may  be 
abolished  by  Congress  at  any  time ;  but  whether 
their  incumbents  may  be  thus  thrown  out  of  office 
is  at  least  doubtful.  When  in  1802  Congress  re- 
pealed an  act  of  the  previous  year  creating  certain 
Circuit  Courts  of  the  United  States,  it  also  threw 
their  judges  out  of  office.  On  the  other  hand,  the 
Act  of  191 3  abolishing  the  Commerce  Court,  left  its 
judges  still  judges  of  the  United  States.    The  latter 


66  The  Constitution 

act  undoubtedly  represented   the  view   of  the  best 
authorities. 

The  territorial  courts,  those  of  Hawaii  and 
Alaska,  do  not  exercise  "judicial  power  of  the 
United  States",  -but  a  special  judicial  power  con- 
ferred upon  them  by  Congress,  by  virtue  of  its 
power  to  govern  territories  of  the  United  States 
(see  Article  IV,  Section  III,  Paragraph  2;  pp. 
76-77).  Their  judges  accordingly  have  a  limited 
tenure  and  are  removable  by  the  President. 

Section  II. 

[Par.  I.]  The  judicial  power  shall  extend 
to  all  cases,  in  law  and  equity,  arising  under 
this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority;  to  all  cases 
affecting  ambassadors,  other  public  minis- 
ters, and  consuls;  to  all  cases  of  admiralty 
and  maritime  jurisdiction ;  to  controversies 
to  which  the  United  States  shall  be  a  party; 
to  controversies  between  two  or  more  States ; 
between  a  State  and  citizens  of  another 
State ;  between  citizens  of  different  States ; 
between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and 
between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens,  or  subjects. 

Whether  a  case  is  one  "in  law"  or  "in  equity"  is 
a  mere  matter  of  history.     Criminal   prosecutions 


What  It  Means  To-Day  67 

and  private  actions  for  damages  are  cases  ''in  law", 
since  these  were  early  decided  in  England  in  the 
regular  law  courts.  An  application  for  an  injunc- 
tion, on  the  other  hand,  was  passed  upon  by  the  Lord 
Chancellor,  as  a  matter  of  grace,  and  so  is  a  suit  "in 
equity".  In  the  National  Government  the  same 
courts  dispense  both  ''law"  and  "equity",  but  the 
distinction  between  the  two  kinds  of  cases  is  still 
maintained,  as  it  is  in  most  of  the  States. 

A  case  is  one  "arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties"  of  the 
United  States,  when  an  interpretation  of  one  or  the 
other  of  these  is  demanded  for  its  final  decision. 

Cases  "arising  under  this  Constitution"  are  cases 
in  which  the  validity  of  an  act  of  Congress  or  a 
treaty  or  of  a  legislative  act  or  constitutional  pro- 
vision of  a  State  is  challenged  with  reference  to  the 
Constitution.  Since  the  Constitution  is  law  (see 
Article  VI,  Paragraph  2),  it  must  be  interpreted 
and  enforced  by  the  judges  in  cases  "arising"  under 
it;  since  it  is  "supreme  law"  the  judges  must  give 
it  preference  over  any  other  law.  Also,  as  is  the 
case  with  any  other  law,  judicial  interpretation  of  it 
is  final  for  the  case  to  which  it  is  applied  and  for 
like  cases.  It  is  upon  these  principles  that  the  power 
of  the  courts  rests  to  pass  upon  the  validity  of  legis- 
lative acts  under  the  Constitution. 


68  Thk  Constitution 

It  frequently  happens  that  cases  "arising-  under 
this  Constitution,  the  laws  of  the  United  States, 
and  treaties"  of  the  United  States  are  first  brought 
up  in  a  State  court,  in  consequence  of  a  prosecution 
by  the  State  itself  under  one  of  its  own  laws  or  of 
an  action  by  a  private  plaintiff  claiming  something 
under  a  law  of  the  State.  If  in  such  a  case  the  de- 
fendant sets  up  a  counter  claim  under  the  Constitu- 
tion or  laws  or  treaties  of  the  United  States,  there- 
upon the  case  becomes  one  "arising  under  this  Con- 
stitution", etc.  By  the  famous  25th  Section  of  the 
Judiciary  Act  of  1789  (Section  709  of  the  Revised 
Statutes,  and  Section  235  of  the  Judiciary  Code) 
such  a  case  may  be  appealed  to  the  United  States 
Supreme  Court  on  a  "writ  of  error",  if  the  decision 
of  the  highest  State  court  to  which  by  the  law  of 
the  State  it  can  come,  affirms  the  claim  based  on  the 
State  law.  (See  also  Amendment  XI;  p.  100.) 
Also  a  recent  act  of  Congress  enables  the  Supreme 
Court,  by  "writ  of  certiorari",  to  bring  the  kind  of 
case  just  described  before  itself  for  final  review  on 
the  point  of  law  involved  even  if  the  claim  which 
was  based  on  State  law  was  rejected  by  the  State 
court  in  deference  to  national  law.  This  was  done 
for  the  reason  that  some  State  courts  have  in  the 
past  taken  a  broader  view  of  certain  clauses  of  the 
Constitution  as  limiting  State  power  (see  the  "Due 
process  of  law"  clause  of  Amendment  XIV;  p.  105). 


What  It  Means  To-Day  69 

than  has  the  Supreme  Court  of  the  United  States, 
and  it  was  thought  desirable  that  State  legislation 
should  be  tested  by  the  more  liberal  standards  of  the 
United  States  Supreme  Court. 

"Cases  of  admiralty  and  maritime  jurisdiction" 
are  not  only  cases  arising  from  acts  or  injuries  done 
upon  the  high  seas  and  within  the  marine  league,  as 
at  common  law,  but  also  for  acts  and  injuries  done 
upon  "the  navigable  waters  of  the  United  States." 
Thus  a  collision  on  one  of  the  Great  Lakes  would 
fall  within  this  jurisdiction,  as  well  as  a  collision  at 
sea.  The  same  jurisdiction  also  extends  to  all  con- 
tracts and  claims  of  a  maritime  nature,  and,  of 
course,  in  war  time,  to  prize  cases. 

"Controversies"  means  "justiciable"  controversies, 
that  is,  such  controversies  as  are  capable  of  being 
decided  by  a  judicial  tribunal;  they  are  always  of  a 
civil  nature. 

The  "controversies  to  which  the  United  States 
shall  be  a  party"  are  either  controversies  in  which 
it  appears  as  plaintiff  or  in  which  it  has  consented 
to  be  sued  before  the  Court  of  Claims. 

"Controversies  between  two  or  more  States"  to- 
day comprehends  almost  any  sort  of  controversy 
between  States  of  the  Union.  Recently,  moreover, 
the  Court  has  made  it  clear  that  it  regards  the 
National   Government  as   possessed   with  adequate 


70  The  Constitution 

authority  to  enforce  the  Court's  decrees  against  any 
State  which  might  fail  to  obey  them. 

Since  the  adoption  of  the  Eleventh  Amendment 
(see  p.  lOO)  "controversies  between  a  State  and 
citizens  of  another  State"  include  only  such  contro- 
versies as  are  originated  by  a  State.  On  the  other 
hand,  the  grounds  upon  which  such  controversies 
may  be  based  are  today  very  broad,  for  in  recent 
years  the  Supreme  Court  (see  Paragraph  2,  below) 
has  recognized  increasingly  the  right  of  a  State 
government  to  intervene  in  behalf  of  important  in- 
terests of  its  citizens,  or  a  considerable  section  of 
them,  and  to  ask  the  Court  to  protect  such  interests 
against  tortious  acts  on  the  part  of  outside  persons 
and  corporations.  Thus  in  what  is  probably  the 
leading  case  the  Court  granted  the  petition  of 
Georgia  for  an  injunction  against  certain  copper 
companies  in  Tennessee,  forbidding  them  to  dis- 
charge noxious  gases  from  their  works  in  Tennessee 
over  the  adjoining  counties  of  Georgia. 

The  judicial  power  of  the  United  States  is  ex- 
tended to  the  kinds  of  controversies  already  men- 
tioned because  there  is  no  other  tribunal  for  such 
controversies.  It  is  extended  to  controversies  "be- 
tween citizens  of  different  States"  for  a  quite  differ- 
ent reason,  namely,  to  make  available  a  tribunal  for 
such  cases  which  shall  be  free  from  local  bias.  In 
this  field,   accordingly,   Congress  has   felt   free  to 


What  It  Mkans  To-Day  71 

leave  the  States  a  concurrent  jurisdiction,  and  as  the 
statute  now  stands,  the  United  States  District 
Courts  have  original  jurisdiction  of  controversies 
between  citizens  of  different  States  in  which  3,CXX5 
dollars  or  more  is  involved,  while  controversies  of 
the  same  pecuniary  importance,  if  brought  by  a 
plaintiff  in  a  court  of  a  State  of  which  defendant  is 
not  a  resident  may  be  removed  by  the  latter  to  the 
nearest  United  States  District  Court.  The  law  in- 
volved in  such  controversies  is  ordinarily  State  law 
and  the  general  principles  of  common  law. 

The  word  "citizens"  in  this  clause  as  well  as 
other  clauses  of  this  paragraph  also  includes  cor- 
porations, a  corporation  being  deemed  to  be  a  citizen 
of  the  State  which  charters  it. 

[Par.  2.]  In  all  cases  affecting  ambassa- 
dors, other  public  ministers  and  consuls,  and 
those  in  which  a  State  shall  be  a  party,  the 
Supreme  Court  shall  have  original  juris- 
diction. In  all  the  other  cases  before  men- 
tioned the  Supreme  Court  shall  have  appel- 
late jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions  and  under  such  regula- 
tions as  the  Congress  shall  make. 

Jurisdiction  is  either  original  or  appellate.  In 
the  famous  case  of  Marbury  v.  Madison,  in  which 
for  the  first  time  the  Supreme  Court  pronounced  an 
act  of  Congress  void  as  being  in  conflict  with  the 


72  The  Constitution 

Constitution,  it  was  held  that  Congress  could  not 
extend  the  original  jurisdiction  of  the  Supreme 
Court  to  other  cases  than  those  mentioned  in  the 
first  sentence  of  this  paragraph. 

As  we  have  just  seen,  Congress  has  extended  the 
appellate  jurisdiction  of  the  Supreme  Court  in  some 
instances  to  the  State  courts.  Of  course,  it  cannot 
do  this  except  for  cases  to  which  the  "judicial  power 
of  the  United  States"  is  extended  by  the  Constitu- 
tion itself. 

The  appellate  jurisdiction  of  the  Supreme  Court 
as  to  fact  is  very  much  curtailed  by  Amendment  VII 
(see  p.  98). 

[Par.  3.]  The  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury;  and 
such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed ;  but 
when  not  committed  within  any  State,  the 
trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

This  paragraph  is  largely  superseded  by  Amend- 
ment VI  below. 

Section  III. 

[Par.  I.]  Treason  against  the  United 
States  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason  unless 


What  It  Means  To-Day  73 

on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open 
court. 


"Levying  war"  consists,  in  the  first  place,  in  a 
combination  or  conspiracy  to  effect  a  change  in  the 
laws  or  the  government  by  force,  but  a  war  is  not 
"levied"  until  the  treasonable  force  is  actually 
assembled. 

One  "adheres"  to  the  enemies  of  the  United 
States,  "giving  them  aid  and  comfort",  when  he 
knowingly  furnishes  them  with  assistance  of  any 
sort. 

"Overt  act"  means  simply  open  act,  that  is  to  say, 
an  act  which  may  be  testified  to.  Since  treason  by 
levying  war  involves  a  conspiracy,  if  an  overt  act  of 
war  in  pursuance  of  the  conspiracy  takes  place,  all 
the  conspirators  are  equally  liable  for  it  at  the  place 
at  which  it  occurs. 

[Par.  2.]  The  Congress  shall  have  power 
to  declare  the  punishment  of  treason,  but  no 
attainder  of  treason  shall  work  corruption 
of  blood  or  forefeiture  except  during  the  life 
of  the  person  attainted. 

By  this  paragraph  the  cruel  feature  of  the  old 
common  law  which  punished  the  traitor  in  the  per- 
sons  of   his   descendants   was   forever   prohibited. 


74  The  Constitution 

Article  IV. 

This  Article  defines  in  certain  important  partic- 
ulars the  relations  of  the  States  to  one  another  and 
of  the  National  Government  to  the  States. 

Section  I. 

Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  State.  And  the 
Congress  may  by  general  laws  prescribe  the 
manner  in  which  such  acts,  records,  and  pro- 
ceedings shall  be  proved,  and  the  effect 
thereof. 

By  this  Section  the  "public  acts,  records  and 
judicial  proceedings"  of  each  State  become  entitled 
to  receive  the  same  force  and  effect  that  they  have 
in  the  State  of  origin.  A  marriage  good  in  one 
State  is  good  in  all ;  also,  generally  speaking,  a 
divorce.  A  mortgage  recorded  for  one  State  is 
recorded  for  all.  A  judgment  rendered  by  the 
courts  of  one  State  must  be  enforced  in  accordance 
with  the  rules  laid  down  by  Congress  in  the  courts 
of  another  State. 

Section  II. 

[Par.  I.]  The  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  States. 


What  It  Means  To-Day  75 

This  paragraph  entitles  the  citizens  of  each  State 
''to  all  privileges  and  immunities  of  citizens"  in 
any  State  wherein  they  may  be  temporarily  so- 
journing. But  there  are  certain  privileges  and  im- 
munities for  which  a  State  may  require  previous 
residence,  as  for  example  the  privilege  of  voting. 
It  is  for  the  Supreme  Court  to  say  finally  whether 
a  particular  privilege  is  one  of  citizenship  merely  or 
one  for  which  the  additional  qualification  of  resi- 
dence may  be  fairly  required. 

[Par.  2.]  A  person  charged  in  any  State 
with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  ex- 
ecutive authority  of  the  State  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the 
State  having  jurisdiction  of  the  crime. 

The  word  ''crime"  here  includes  statutory  crimes 
as  well  as  common  law  crimes  but  does  not  include 
misdemeanors. 

The  performance  of  the  duty  which  is  cast  by 
this  paragraph  upon  the  States  has  been  imposed  by 
act  of  Congress  upon  the  governors  thereof,  but 
the  Supreme  Court  has  held  that  the  act  or  duty  is 
a  discretionary  one  and  that  therefore  its  perform- 
ance may  not  be  compelled  by  writ  of  mandamus, 
and  in  consequence  the  governors  of  States  have 
often  refused  compliance  with  a  demand  for  extra- 


76  The  Constitution 

dition  when  in  their  opinion  substantial  justice  re- 
quired such  refusal. 

[Par.  3.]  No  person  held  to  service  or 
labor  in  one  State,  under  the  laws  thereof, 
escaping-  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall 
be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due. 

"Person  held  to  service  or  labor"  meant  slaves 
and  apprentices.  The  paragraph  is  now  of  historical 
interest  only. 

Section  III. 

[Par.  I.]  New  States  may  be  admitted  by 
the  Congress  into  this  Union ;  but  no  new 
States  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  State;  nor  any 
State  be  formed  by  the  junction  of  two  or 
more  States  or  parts  of  States,  without  the 
consent  of  the  legislatures  of  the  States  con- 
cerned as  well  as  of  the  Congress. 

When  new  States  are  admitted  into  "this 
Union"  they  are  admitted  upon  a  basis  of  equality 
with  the  previous  members  of  the  Union,  since 
"this  Union"  is  a  Union  of  equal  States. 

[Par.  2.]  The  Congress  shall  have  power 
to  dispose   of   and   make  all   needful   rules 


What  It  Means  To-Day  -jy 

and   regulations   respecting  the  territory  or 
other    property    belonging    to    the    United 
States;     and    nothing   in    this    Constitution 
shall  be  so   construed  as  to  prejudice   any 
claims  of  the  United  States  or  of  any  par- 
ticular State. 
Congress's  control  of  the  public  lands  is  derived 
from   this   paragraph.      Its   power   to   acquire   and 
therefore  to  govern  territories,  however,  is  derived, 
by  best  authority,  from  the  fact  that  such  a  power 
is  inherent  in  any  national  government. 

While  the  treaty-making  power  may  acquire  ter- 
ritory, only  Congress  can  incorporate  it  into  the 
United  States,  which  may  be  done  either  by  admit- 
ting the  territory  into  "this  Union"  as  new  States 
or,  less  completely,  by  extending  the  Constitution 
to  it.  Until  territory  is  thus  incorporated  into  the 
United  States,  Congress's  power  to  govern  it  is 
nearly  absolute,  though  doubtless  it  is  limited  by 
certain  fundamental  rights  of  persons. 

Conquered  territory  may  be  governed  tempo- 
rarily by  the  President  by  virtue  of  his  power  as 
Commander-in-Chief  of  the  Army  and  Navy,  but 
Congress  may  at  any  time  supplant  such  govern- 
ment with  one  of  its  own  creation. 

Section  IV. 

The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican   form  of 


78  The  Constitution 

government,  and  shall  protect  each  of  them 
against  invasion,  and  on  application  of  the 
legislature,  or  of  the  executive  (when  the 
legislature  cannot  be  convened),  against 
domestic  violence. 

"The  United  States''  here  means  the  political 
branches  of  the  Government,  that  is,  the  President 
and  Congress.  A  "republican  form  of  govern- 
ment" means,  strictly  speaking,  a  government  by 
the  representatives  of  the  people,  and  is  to  be  con- 
trasted with  monarchy  on  the  one  hand  and  direct 
government  on  the  other  hand.  But  a  considerable 
admixture  of  direct  government  does  not  make  a 
government  unrepublican ;  and  whether  the  gov- 
ernment of  a  State  is  republican  in  form  or  not  is 
finally  for  Congress  to  say.  Thus  Congress  may 
approve  of  the  government  of  a  new  State  by  ad- 
mitting it  into  the  Union,  or  the  houses  of  Con- 
gress may  indicate  their  approval  by  seating  the 
Senators  and  Representatives  of  the  State. 

The  President  is  authorized  by  statute  to  employ 
the  forces  of  the  United  States  to  discharge  the 
duties  of  the  United  States  under  the  second  part  of 
this  paragraph. 

Article  V. 

The    Congress,    whenever    two-thirds    of 
both  houses  shall   deem   it   necessary,    shall 


What  It  Means  To-Day  79 

propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  legislatures  of  two- 
thirds  of  the  several  States,  shall  call  a  con- 
vention for  proposing  amendments,  which  in 
either  case  shall  be  valid  to  all  intents  and 
purposes  as  part  of  this  Constitution,  when 
ratified  by  the  legislatures  of  three- fourths 
of  the  several  States,  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the 
Congress,  provided  that  no  amendments 
which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight  shall  it) 
any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first 
article ;  and  that  no  State,  without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage 
in  the  Senate. 

"The  Congress,  whenever  .  .  .  both  houses 
shall  deem  it  necessary" :  The  necessity  of  amend- 
ments to  the  Constitution  is  a  question  to  be  deter- 
mined by  the  two  houses  alone;  and  neither  the 
President  nor  the  courts  have  any  voice  in  the 
matter. 

"Two-thirds  of  both  houses"  means  two-thirds 
of  a  quorum  in  both  houses  (see  Article  I,  Section 
VII,  Paragraph  2;  p.  15). 

"Legislatures"  means  the  legislative  assemblies 
of  the  States  and  does  not  include  even  their  gov- 
nors,  far  less  their  voters. 


8o  The  Constitution 

Of  the  two  methods  here  laid  down  for  proposing 
amendments  to  the  Constitution  only  the  first  has 
ever  been  resorted  to,  and  all  such  amendments  have 
been  referred  to  the  State  legislatures.  It  is  to  be 
hoped,  however,  that  in  the  future  conventions  will 
be  called  in  the  States,  elected  for  the  purpose. 

Of  the  two  exceptions  here  made  to  the  amend- 
ing power  the  first  is  today  obsolete.  The  only 
change  that  the  power  which  amends  the  Constitu- 
tion may  not  make  in  the  Constitution  is  to  deprive 
a  State  without  its  consent  of  its  "equal  suffrage  in 
the  Senate".  This  follows,  first,  from  the  fact  that 
this  exception  and  no  other  is  specifically  men- 
tioned which  is  today  in  force;  secondly,  from  the 
fact  that  the  amending  power  represents  the  people 
of  the  United  States  (see  Preamble)  in  their  ulti- 
mate capacity  to  change  or  alter  their  institutions 
at  will.  For  if  this  supreme  power  is  not  provided 
for  in  this  Article  it  is  nowhere  provided  for  in  the 
Constitution,  and  the  only  way  in  which  the  people 
of  the  United  States  could  exercise  it  would  be  by 
act  of  revolution. 

Article  VI. 

[Par.  I.]  All  debts  contracted  and  en- 
gagements entered  into,  before  the  adoption 
of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Constitution  as 
under  the  confederation. 


What  It  Means  To-Day  8i 

This  paragraph,  which  is  now  only  of  historical 
interest,  was  intended  to  put  into  effect  the  rule  of 
International  Law  that  when  a  new  government 
takes  the  place  of  an  old  one  it  succeeds  to  the 
latter's  financial  obligations. 

[Par,  2.]  This  Constitution,  and  the  laws 
of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law 
of  the  land;  and  the  judges  in  every  State 
shall  be  bound  thereby,  anything  in  the 
Constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding. 

This  paragraph  has  been  called  "the  linch  pin  of 
the  Constitution'',  and  very  fittingly,  since  it  com- 
bines the  National  Government  and  the  States  into 
one  governmental  organization,  one  Federal  State. 

It  also  makes  plain  the  fact  that,  while  the  Na- 
tional Government  is  for  the  most  part  one  of 
enumerated  powers,  as  to  its  powers  it  is  supreme 
over  any  conflicting  State  powers  whatsoever. 
When,  accordingly,  a  collision  occurs  between 
national  and  State  law  the  only  question  is,  whether 
the  former  was  within  a  fair  definition  of  Con- 
gress's powers.  If  it  was,  then  the  State  law  must 
give  way,  no  matter  by  virtue  of  what  power  it  was 
passed. 


82  The  Constitution 

Finally,  this  paragraph,  in  establishing  the  obli- 
gation of  State  judges  to  prefer  the  laws  of  the 
United  States  which  are  "in  pursuance  of  the  Con- 
stitution" to  conflicting  State  laws  and  constitutions, 
implies  their  right  to  say  whether  laws  of  the 
United  States  are  in  pursuance  of  the  Constitution; 
and  from  their  decisions  on  this  question  there  may 
always  be,  as  we  have  seen,  a  final  appeal  to  the 
United  States  Supreme  Court  (see  Article  III,  Sec- 
tion II,  Paragraph  i ;  pp.  66—68). 

[Par.  3.]  The  Senators  and  Representa- 
tives before  mentioned,  and  the  members  of 
the  several  State  legislatures,  and  all  execu- 
tive and  judicial  officers  both  of  the  United 
States  and  of  the  several  States,  shall  be 
bound  by  oath  or  affirmation  to  support  this 
Constitution ;  but  no  religious  test  shall  ever 
be  rec|uired  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States. 

State  officers  have  many  duties,  both  positive 
and  negative,  laid  upon  them  by  the  Constitution 
(see  Article  I,  Section  III,  Paragraph  i  ;  Section 
IV,  Paragraph  i ;  Section  X ;  Article  II,  Section  I, 
Paragraph  2 ;  Article  III,  Section  II,  Paragraph  2 ; 
Article  IV,  Sections  I  and  II ;  Article  V ;  Amend- 
ments XIII,  XIV,  XV,  XVII,  and  XVIII),  and 
these  may  be  increased  frequently  by  Congress,  by 
virtue  of  its  "necessary  and  proper"  powers.     Thus 


What  It  Means  To-Day  83 

the  recent  Draft  Act  was  enforced  to  a  great  extent 
through  State  officers.  Hence,  it  l>ecomes  necessary 
that  State  officers  should  take  the  oath  to  support 
the  Constitution,  since  for  many  purposes  they  are 
national  officers.  Indeed,  the  possible  uses  to 
which  the  State  governments  might  be  put  as  agents 
of  the  National  Government  have  never  yet  been 
fully  appreciated,  but  it  may  be  supposed  that  as 
the  powers  of  Congress  expand  and  those  of  the 
State  governments  correspondingly  contract,  the 
latter  may  be  utilized  more  and  more  by  the  Na- 
tional Government  for  administrative  purposes. 

A  "religious  test"  is  one  demanding  the  avowal 
or  repudiation  of  certain  religious  beliefs.  While 
no  religious  test  may  be  required  as  a  qualification 
for  office  under  the  United  States,  indulgence  in 
immoral  practices  claiming  the  sanction  of  religious 
belief,  such  as  polygamy,  may  be  made  a  disquali- 
fication. Contrariwise,  alleged  religious  beliefs  or 
moral  scruples  do  not  furnish  ground  for  evasion 
of  the  ordinary  duties  of  citizenship,  like  the  pay- 
ment of  taxes  or  military  service,  although,  of 
course.  Congress  may  of  its  own  free  will  grant 
exemptions  on  such  grounds. 

"Oath  or  affirmation"  :  This  option  was  provided 
for  the  special  benefit  of  the  Quakers. 


84  The  Constitution 

Article  VII. 

The  ratification  of  the  convention  of  nine 
States  shall  be  sufficient  for  the  establish- 
ment of  this  Constitution  between  the  States 
so  ratifying  the  same.^ 

Done  in  convention  by  the  unanimous 
consent  of  the  States  present,  the  seven- 
teenth day  of  September,  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and 
eighty-seven,  and  of  the  independence  of  the 
United  States  of  America  the  twelfth.  In 
witness  whereof  we  have  hereunto  sub- 
scribed our  names. 

George  Washington,  President,  and  Dep- 
uty from  Virginia. 

New  Hampshire — John  Langdon,  Nich- 
olas Oilman. 

Massachusetts — Nathaniel  Gorham,  Rufus 
King. 

Connecticut — William  Samuel  Johnson, 
Roger  Sherman. 

New  York — Alexander  Hamilton. 

New  Jersey — William  Livingston,  David 
Brearly,  William  Patterson,  Jonathan  Day- 
ton. 

Pennsylvania — Benjamin  Franklin,  Thos. 
Mifflin,  Robert  Morris.  George  Clymer, 
Thomas  Fitzsimons,  Jared  Ingersoll,  James 
Wilson,  Gouverneur  Morris. 

Delaware — George  Read,  Gunning  Bed- 
ford. Jr.,  John  Dickinson,  Richard  Bassett, 
Jacob  Broom. 


What  It  Means  To-Day  85 

Maryland — James  McHenry,  Daniel  of 
St.  Thomas  Jenifer.  Daniel  Carroll. 

Virginia — John  Blair,  James  Madison,  Jr. 

North  Carolina — John  Rutledge.  Charles 
Cotesworth  Pinckney,  Charles  Pinckney, 
Pierce  Butler. 

Georgia — William  Few,  Abraham  Bald- 
win. 

Attest:     William  Jackson,  Secretary.* 

Amendments.* 
The  first  ten  amendments  make  up  the  so-called 
Bill  of  Rights  of  the  National  Constitution.  They 
were  designed  to  quiet  the  fears  of  mild  opponents 
of  the  Constitution  in  its  original  form  and  were 
proposed  to  the  State  legislatures  by  the  first  Con- 
gress which  assembled  under  the  Constitution. 
They  bind  only  the  National  Government  and  in 
nowise  limit  the  powers  of  the  States. 


*  The  first  ten  amendments  were  proposed  in  1789,  and  de- 
clared adopted  in  1791. 

The  eleventh  amendment  was  proposed  in  1794,  and  de- 
clared adopted  in   1798. 

The  twelfth  amendment  was  proposed  in  1803,  and  de- 
clared adopted  in  1804.  .  •      ..^ 

The  thirteenth  amendment  was  proposed  and  adopted  m  1805. 

The  fourteenth  amendment  was  proposed  in  1866,  and 
adopted  in  1868.  ,     •         o^  a 

The  fifteenth  amendment  was  proposed  in  1869,  and 
adopted  in   1870.  ^       ,     ,         ,  • 

The  sixteenth  amendment  was  proposed  and  adopted  m  1913. 

The  seventeenth  amendment  was  proposed  and  adopted  in 

The  eighteenth  amendment  was  proposed  in  191 7,  and 
adopted  in  1919. 


86  The  Constitution 


Article  I. 


Congress  shall  make  no  law  respecting-  an 
establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof ;  or  abridging  the  free- 
dom of  speech  or  of  the  press;  or  the  right 
of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a  redress  of 
grievances 

Congress  may  make  no  law  at  all  "respecting  an 
establishment  of  religion,"'  nor  yet  "prohibiting  the 
free  exercise"  of  religious  belief ;  and  it  may  not 
make  laws  which  abridge  "the  freedom  of  speech 
or  of  the  press"  or  the  rights  of  assembly  and  peti- 
tion. 

"An  establishment  of  religion*'  means  a  state 
church,  such  as  for  instance  existed  in  Massachu- 
setts for  more  than  40  years  after  the  adoption  of 
the  Constitution. 

"The  free  exercise  thereof"  does  not  extend,  as 
has  already  been  suggested,  to  immoral  practises. 
Hence  Congress  at  an  early  date  passed  laws  pro- 
hibiting polygamy  in  some  of  the  territories. 

"Freedom  of  speech"  and  "press"  may  be  defined 
as  the  right  of  fair  discussion  of  public  men  and 
measures.  Such  a  right  is  absolutely  indispen- 
sable to  a  republican  form  of  government  such  as 


What  It  Means  To-Day  87 

ours.  But  freedom  of  utterance  is  not  license  of 
utterance,  and  it  is  only  the  former  which  is  pro- 
tected by  this  Amendment. 

Outside  of  certain  territories,  as  a  matter  of  fact, 
Congress  has  no  general  power  over  either  speech 
or  press,  but  it  has,  of  course,  the  power  to  make 
"all  laws  necessary  and  proper"  to  carry  the 
powers  of  the  National  Government  into  effect;  in 
short,  to  keep  the  Government  working  efficiently. 
What  may  be  a  "necessary  and  proper"  restraint 
from  this  point  of  view  upon  speech  and  press  at 
one  time  would  not  be  at  another.  In  time  of  war 
or  public  danger  when  even  the  privilege  of  the 
writ  of  habeas  corpus  may  be  suspended  (see  Ar- 
ticle I,  Section  IX,  Paragraph  2;  p.  36),  measures 
of  restraint  may  go  to  lengths  not  allowable  in 
quieter  times.  Yet  at  all  times,  it  is  generally  con- 
ceded, Congress  may  ban  utterances  calculated  to  in- 
cite to  violence  or  a  forcible  breach  of  the  law;  and 
this  means  in  practice  that  it  may  ban  utterances 
which  to  a  jury  of  twelve  Americans  may  seem  cal- 
culated to  do  this. 

Congress's  control  over  the  newspaper  press  is 
reinforced  by  its  control  of  the  mails  (see  Article 
I,  Section  VIII,  Paragraph  7;  p.  28).  Few  news- 
papers or  periodicals  can  profitably  circulate  except 
locally  unless  they  enjoy  the  "second  class  privilege," 
that  is  the  privilege  of  specially  low  rates,  and  this 


88  The  Constitution 

privilege  is  under  the  practically  absolute  control  of 
Congress,  and,  by  delegation,  the  Postmaster  Gen- 
eral. Moreover,  Congress  can  banish  from  the 
mails  altogether  or  even  from  the  channels  of  inter- 
state commerce,  indecent,  fraudulent,  and  seditious 
matter.  For  there  can  be  no  right  to  circulate, 
v^hat  there  is  no  right  to  publish. 

The  rights  of  assembly  and  petition  are  also  to 
be  defined  with  reference  to  the  primary  necessity 
of  good  order,  but  from  the  nature  of  the  case  the 
latter  right  would  be  ordinarily  less  affected  by  this 
consideration  than  the  former.  The  right  of  peti- 
tion implies  the  further  right  on  the  part  of  the  peti- 
tioners that  the  Government  at  least  give  a  hearing 
to  their  grievances. 

Article  II. 

A  well-regulated  militia  being  necessary  to 
the  security  of  a  free  State,  the  right  of  the 
people  to  keep  and  bear  arms  shall  not  be  in- 
fringed. 

The  expression  "a  free  State"  is  here  used  in  the 
generic  sense,  and  so  refers  to  the  United  States  as 
a  whole  as  well  as  to  the  several  States  ( see  Article 
I,  Section  VIII,  Paragraphs  15  and  16;   p.  33). 

The  right  "to  bear  arms"  is  the  right  to  bear 
them  openly,  not  in  concealment. 


What  It  Means  To-Day  89 

Article  III. 

No  soldier  shall,  in  time  of  peace,  be  quar- 
tered in  any  house  without  the  consent  of 
the  owner,  nor  in  time  of  war,  but  in  a  man- 
ner to  be  prescribed  by  law. 

This  and  the  following  Amendment  sprang  from 
certain  grievances  which  contributed  to  bring  about 
the  American  Revolution. 

Article  IV. 

The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers  and  effects, 
against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  de- 
scribing the  place  to  be  searched,  and  the 
person  or  things  to  be  seized. 

"Houses"  means  dwelling  places,  not  places  of 
business. 

The  right  to  security  of  "papers  and  effects"  sup- 
plements the  provision  in  the  following  Amend- 
ment against  self-incrimination.  No  one  may  be 
compelled  to  turn  over  to  the  authorities  private 
papers  which  may  be  made  the  basis  of  proceedings 
against  him.  Nor  may  papers  seized  without  a 
proper  warrant  by  agents  of  the  Government  be 
used  as  evidence  against  him. 


go  The  Constitution 

Whether  a  warrant  is  in  such  broad  terms  that  a 
seizure  under  it  would  be  "unreasonable"  is,  of 
course,  finally  for  the  Supreme  Court  to  say. 

Article  V. 

No  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless 
on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  public  danger ;  nor 
shall  any  person  be  subject  for  the  same 
offense  to  be  twice  put  in  jeopardy  of  life 
or  limb ;  nor  shall  be  compelled  in  any  crimi- 
nal case  to  be  a  witness  against  himself,  nor 
be  deprived  of  life,  liberty  or  property,  with- 
out due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just 
compensation. 

Amendments  V.  VI,  and  VIII  constitute  a  "bill 
of  rights"  for  accused  persons.  For  the  most  part 
they  are  compiled  from  the  Bills  of  Rights  of  the 
early  State  Constitutions,  and  in  more  than  one 
respect  they  represent  a  distinct  advance  upon  the 
English  law  of  that  time  and  indeed  for  many  years 
afterward. 

"Infamous  crime"  is  one  rendered  so  by  the  pen- 
alty attached  to  it.  Any  offense  involving  impris- 
onment or  loss  of  civil  or  political  privileges  is,  it 


What  It  Means  To-Day  91 

has  been  held,  "infamous"  in  the  sense  of  the  Con- 
stitution. 

"Presentment  or  indictment"  :  A  presentment  is 
returned  upon  the  initiative  of  the  grand  jury;  an 
indictment  is  returned  upon  evidence  laid  before 
that  body  by  the  public  prosecutor. 

A  "grand  jury"  consists  of  at  least  twelve  and 
not  more  than  twenty-three  men  chosen  from  the 
community  by  a  process  described  by  law.  Once 
constituted  it  has  large  powers  of  investigation,  but 
its  presentments  or  indictments  must  have  the  sup- 
port of  at  least  twelve  members. 

"In  time  of  war  or  public  danger"  :  This  clause 
indicates  that  except  for  "the  land  and  naval 
forces",  etc.,  the  Fifth  Amendment  is  designed  for 
times  of  war  as  well  as  for  times  of  peace.  But  it 
is  obvious  that  in  order  to  enforce  its  provisions,  as 
well  as  those  of  the  following  Amendment,  the 
courts  must  be  open.  In  regions  where  the  courts 
are  not  open,  or  cannot,  on  account  of  disorder, 
function  properly,  martial  law  may  be  established 
by  proper  authority;  but  the  necessity  for  its  es- 
tablishment will  still  be  a  question  for  the  civil 
courts,  and  finally  for  the  Supreme  Court. 

"Twice  in  jeopardy"  :  A  person  has  been  once 
in  jeopardy  when  a  jury  has  returned  a  verdict  on 
the  facts  in  his  case  in  a  court  having  jurisdiction 
of  it.     This  clause  does  not,  however,  prevent  the 


92  The  Constitution 

Government  from  taking  an  appeal  on  questions  of 
law  at  any  time  before  the  return  of  such  verdict. 

"Life  or  limb"  has  come  to  mean  life  or  liberty. 

"Nor  be  compelled  in  any  criminal  case",  etc. : 
This  clause,  which  originated  in  the  common  law  as 
a  protest  against  the  torture  of  witnesses,  is  today 
so  broadly  interpreted  as  to  allow  a  witness  to 
refuse  to  testify  in  any  sort  of  judicial  or  quasi- 
judicial  proceeding  with  reference  to  facts  which 
he  is  legally  advised  would  furnish  a  basis  for 
criminal  proceedings  against  himself.  But  Con- 
gress may  at  any  time,  by  promising  immunity 
from  prosecution,  put  it  beyond  the  power  of  a 
witness  to  claim  the  benefits  of  the  clause ;  and,  of 
course  an  accused  person  may,  if  he  wishes,  take 
the  stand  in  his  own  behalf,  but  if  he  does  so  he  at 
once  waives  his  constitutional  immunity  completely. 

"Nor  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law":  The  protection  of 
this  clause  is  by  no  means  confined  to  accused  per- 
sons, but  extends  to  all  persons  in  all  circumstances 
in  which  their  rights  may  be  affected  by  any  action 
taken  by  the  National  Government,  while  a  like 
clause  of  the  Fourteenth  Amendment  affords  a 
similar  range  of  protection  against  the  States. 

"Liberty"  is  not  simply  freedom  from  detention 
but  also  signifies  all  the  ordinary  rights  which  one 
enjoys  as  a  member  of  the  community. 


What  It  Means  To-Day  93 

"Property"  means  not  merely  physical  possession 
of  the  thing  owned,  but  the  sum  total  of  its  per- 
missible uses. 

It  should  be  noted,  however,  that  this  clause  does 
not  say  that  no  person  shall  "be  deprived  of  life, 
liberty  or  property"  in  any  possible  circumstance, 
but  that  "no  person  shall  be  deprived  of  life,  liberty 
or  property  mitlioiit  due  process  of  law".  What 
then  is  "due  process  of  law"?  It  is,  briefly,  that 
method  of  exercising  the  powers  of  government 
which  either  custom  or  justice  sanctions  for  the 
kind  of  case  which  is  under  consideration. 

In  criminal  proceedings  "due  process  of  law"  is, 
so  far  as  the  National  Government  is  concerned,  the 
kind  of  process  which  is  here  described  in  the  Fifth 
and  Sixth  Amendments. 

In  "actions  at  common  law,"  *'due  process  of 
law"  in  the  national  courts  ordinarily  includes,  by 
the  requirement  of  Amendment  VII,  trial  by  jury. 

Generally  speaking,  too,  "due  process  of  law" 
exacts  that  the  final  interpretation  of  the  law  be  left 
to  the  courts. 

On  the  other  hand,  the  ascertainment  of  facts, 
and  even  to  some  extent  the  interpretation  of  the 
law.  may  be  frequently  put  by  Congress  into  the 
hands  of  executive  officers  without  violation  of 
"due  process  of  law."  Whether  an  alien  who 
wants  to  enter  the  country  may  do  so  or  not,  or 


94  '^HE  Constitution 

whether  an  ahen  already  here  shall  be  deported,  are 
both  questions  which  are  to-day  finally  determined 
by  the  Secretary  of  Labor,  in  accordance  with  the 
acts  of  Congress  regulating  these  matters.  Also, 
whether  a  periodical  is  entitled  to  the  second  class 
privilege  is  a  question  for  the  Postmaster  General 
to  decide,  and  so  on.  In  these  cases  the  Govern- 
ment is  not  aiming  to  punish  anybody,  but  is  simply 
exercising  its  self-protective  pozvers  against  certain 
dangers.  "Due  process  of  law"  accordingly  does 
not  exact  trial  by  jury  for  such  cases,  but  only 
that  the  administrative  body  concerned  act  within 
the  powers  conferred  upon  it  by  law,  that  it  give  the 
person  or  persons  to  be  affected  by  its  orders  an 
opportunity  for  a  fair  hearing,  and  that  it  do  not  act 
"arbitrarily." 

But  this  clause  also  limits  legislative  power  di- 
rectly, in  which  sense  it  signifies  that  Congress  may 
not  elxercise  its  powers  "arbitrarily."  Thusi,  if 
Congress  should  attempt  to  levy  a  special  income 
tax  on  blue-eyed  persons,  or  to  exclude  from  the 
channels  of  interstate  commerce  the  products  of 
members  of  certain  political  parties  or  religious 
organizations,  its  action  would  be  so  outrageous  an 
abuse  of  power  as  to  amount  to  an  action  in  excess 
of  power,  a  fact  which  the  "due  process  of  law" 
clause  simply  makes  plain  from  the  point  of  riew 
of  personal  rights.    Also,  there  are  certain  type*  of 


What  It  Means  To-Day  95 

legislation  which  have  occasionally  fallen  under 
the  condemnation  of  this  clause  because  of  the 
novel  restrictions  which  they  have  set  to  private 
liberty.  Thus  when  Congress  passed  an  act  for- 
bidding railroad  companies  to  discharge  their  em- 
ployees because  of  membership  in  labor  unions, 
while  still  leaving  such  employees  free  to  quit  their 
employment  at  will,  the  Court  set  the  act  aside  as 
violative  of  "due  process  of  law."  On  the  other 
hand,  the  Court  has  recently  recognized  that  Con- 
gress may  take  extraordinary  measures  in  an 
emergency  to  keep  interstate  commerce  moving, 
and  such  measures  may  be  ''due  process  of  law" 
even  though  they  invade  private  rights  very  drasti- 
cally. 

In  a  word,  the  "due  process  of  law"  clause  rules 
out  all  arbitrary  exercise  of  governmental  power; 
but  an  emergency  may  sometimes  justify  what 
would  ordinarily  be  arbitrary. 

The  power  which  the  Government  exerts  when  it 
"takes  private  property"  for  "public  use"  is  called 
the  power  of  eminent  domain.  Before  the  Civil 
War  it  was  generally  denied  that  the  National  Gov- 
ernment could  exercise  the  power  of  eminent 
domain  within  a  State  without  the  consent  of  the 
State  (see  Article  I,  Section  VIII,  Paragraph  17). 
Today,  however,  it  is  well  settled  that  the  National 
Government  may  take  property  by  eminent  domain 


96  The  Constitution 

whenever  it  is  "necessary  and  proper"  for  it  to  do 
so,  in  order  to  carry  out  any  of  the  powers  of  the 
National  Government.  It  may  also,  in  proper 
cases,  vest  this  power  in  corporations  chartered 
by  it. 

Property  is  "taken,"  generally  speaking,  only 
when  the  title  to  it  is  transferred  to  the  Govern- 
ment or  the  Government  takes  over  or  assumes  to 
control  its  valuable  uses.  It  is  not  "taken"  simply 
because  its  value  declines  in  consequence  of  an  exer- 
tion of  lawful  power  by  the  Government.  Thus, 
Congress  may  lower  the  tariff  or  declare  war,  etc., 
without  having  to  compensate  those  who  suffer 
losses  as  a  result  of  its  action. 

What  is  a  "public  use"?  The  Government  can- 
not take  the  property  of  one  person  and  transfer  it 
to  another  out  of  pure  favoritism,  even  though  it 
pay  the  original  owner  a  fair  price ;  but  what  may 
at  first  glance  seem  a  private  purpose  may  be  a 
public  one,  as  where  a  railroad  company  is  vested 
with  the  power  of  eminent  domain.  What  is  a 
"public  use"  is  in  the  first  instance  a  question  for 
Congress,  but  finally  one  for  the  Supreme  Court. 

"Just  compensation"  must  be  determined  by  an 
impartial  body,  not  necessarily  a  court  or  a  jury. 

See  also  Article  I,  Section  VIII,  Paragraph  3, 
at  page  23. 


What  It  Means  To-Day  97 

Article  VI. 

In  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accu- 
sation; to  be  confronted  with  the  witnesses 
against  him ;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  de- 
fense. 

"A  speedy  trial"  means  a  reasonably  speedy  trial, 
and  the  right  to  it  may  be  secured  by  the  writ  of 
habeas  corpus.  "Public  trial"  does  not  mean  one 
to  which  the  public  at  large  is  admitted,  but  one  to 
which  representatives  of  the  public  and  especially 
friends  of  the  prisoner  are  admitted  in  order  to  see 
that  justice  is  done.  "Ju'"y"  means  the  common 
law  jury  of  twelve. 

"State  and  district" :  The  prisoner  is  to  have 
such  benefit  as  may  be  derived  from  his  reputa- 
tion among  his  neighbors. 

"Confronted  with  the  witnesses  against  him" : 
This  is  in  order  that  he  may  be  able  to  cross-ex- 
amine them. 

"Assistance  of  counsel" :  The  relation  between 
a   prisoner   and   his   counsel    is   a  confidential   one 


98  Thk  Constitution 

and  communications  between  them  may  on  no  ac- 
count be  divulged  in  court. 

Article  VII. 
In  suits  at  common  law,  where  the  value 
in  controversy  shall  exceed  twenty  dollars, 
the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the 
common  law. 

This  Amendment,  as  we  have  seen,  restricts  the 
power  of  the  Supreme  Court  of  the  United 
States  in  reviewing  questions  of  fact  upon  appeal 
from  the  lower  Federal  courts.  '(See  Article  III, 
Section  II,  Paragraph  2  ;  p.  82.) 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  and  un- 
usual punishments  inflicted. 

"Cruel  and  unusual  punishments"  means  cruel 
and  unusual  punishments;  that  is,  a  punishment 
is  not  forbidden  merely  because  it  is  unusual.  Thus, 
the  penalty  of  death  may  be  inflicted  by  elec- 
trocution. 

Article  IX. 
The   enumeration  in  tKfe  Constitution  of 
certain    rights    shall    not    be    construed    to 


What  It  Means  To-Day  99 

deny   or   disparage   others   retained    by    the 
people. 

In  other  words,  there  are  certain  rights  of  so 
fundamental  a  character  that  no  free  government 
may  trespass  upon  them,  whether  they  are  enum- 
erated in  the  Constitution  or  not. 

Article  X. 

The  powers  not  delegated  to  the  United 
States  ijy  the  Constitution,  nor  proiiibited 
by  it  to  the  States,  are  reserved  to  the  States 
respectively  or  to  the  people. 

There  was  a  tendency  before  the  Civil  War  to 
read  this  Article  as  if  it  said  that  the  powers  re- 
served by  the  States  were  not  delegated  to  the 
United  States.  Obviously,  the  proper  reading  is 
that  the  powers  reserved  to  the  States  are  reserved 
to  them  by  the  Constitution  and  conditionally 
upon  their  not  having  been  delegated  to  the  United 
States  nor  prohibited  to  the  States. 

"States"'  means  the  State  governments  and  the 
people  of  the  States. 

"The  people"  means  the  people  of  the  United 
States;  that  is,  the  same  people  who  ordained  and 
established  this  Constitution  (see  Preamble),  and, 
therefore,  have  the  right  to  amend  it  at  will  in  ac- 
cordance with  the  procedure  prescribed  by  it  (see 
Article  V;   pp.  78-80.). 


loo  The  Constitution 

ARTICI.E  XL 

The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit 
in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  State. 

This  Amendment  was  inserted  primarily  in  order 
to  protect  the  States  against  suits  for  debt,  but  it 
is  construed  to  prevent  any  kind  of  suit  being 
brought  in  a  national  court  against  a  State,  not 
only  "by  citizens  of  another  State,"  but  even  by 
the  State's  own  citizens.  A  suit  is,  however,  not 
"commenced  or  prosecuted"  against  a  State  by 
the  appeal  of  a  case  which  was  instituted  by  the 
State  itself  against  a  defendant  who  claims  rights 
under  the  Constitution  or  laws  or  treaties  of  the 
United  States  (see  Article  III,  Section  II,  Para- 
graph I  ;  pp.  66-68. 

Also,  an  officer  of  a  State  who  is  acting  in  viola- 
tion of  rights  protected  by  the  Constitution  or 
laws  or  treaties  of  the  United  States  may  not,  since 
he  is  acting  contrary  to  "the  supreme  law  of  the 
land"  (see  Article  VI,  Paragraph  2;  p.  81),  claim 
the  protection  of  this  Amendment,  and  he  may,  ac- 
cordingly, be  prevented  from  so  acting  by  writ  of 
injunction. 


What  It  Mkans  To-Day  ioj 

Article  XII. 

[Par.  I.]  The  electors  shall  meet  in  their 
respective  States  and  vote  by  ballot  for 
President  and  Vice-President,  one  of  whom, 
at  least,  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves ;  they  shall  name 
in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as 
President  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  numl^er  of  votes 
for  each ;  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  Presi- 
dent of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall 
then  be  counted.  The  person  having  the 
greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a  ma- 
jority of  the  whole  number  of  electors  ap- 
pointed :  and  if  no  person  have  such  major- 
ity, then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of 
those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But  in  choosing  the 
President  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having 
one  vote;    a  quorum  for  this  purpose  shall 


I02  The  Constitution 

consist  of  a  member  or  members  from  two 
thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not 
choose  a  President  whenever  the  right  of 
choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then 
the  Vice-President  shall  act  as  President,  as 
in  the  case  of  the  death  or  other  constitu- 
tional disability  of  the  President. 

[Par.  2.]  The  person  having  the  greatest 
number  of  votes  as  Vice-President  shall  be 
the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors 
appointed ;  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the 
list  the  Senate  shall  choose  the  Vice-Presi- 
dent ;  a  quorum  for  the  purpose  shall  consist 
of  two-thirds  of  the  whole  number  of  Sena- 
tors, and  a  majority  of  the  whole  number 
shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of 
President  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 

This  Amendment  supersedes  Article  II,  Section 
III,  above,  of  the  original  Constitution.  It  was 
inserted  on  account  of  the  tie  between  Jefiferson 
and  Burr  in  the  election  of  1800.  The  differ- 
ence between  the  procedure  which  it  defines  and 
that  which  was  laid  down  in  the  original  Consti- 
tution is  in  the  provision  it  makes  for  a  separate 


What  It  Means  ToDay  103 

designation    by    the    electors    of    their    choice    for 
President  and  Vice-President  respectively. 

Articles  XIII,  XIV,  and  XV  are  the  so-called 
War  Amendments.  Article  XIII  freed  the  negro 
from  slavery,  Article  XIV  made  him  a  citizen  and 
bestowed  upon  him  civil  rights,  Article  XV  made 
him,  temporarily  at  least,  a  voter. 

ArticIvE  XIII. 

Section  i.  Neither  slavery  nor  involun- 
tary servitude,  except  as  a  punishment  for 
crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United 
States  or  any  place  subject  to  their  jurisdic- 
tion. 

Section  2.  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legisla- 
tion. 

This  Amendment  was  recently  construed  by  the 
Supreme  Court  in  the  following  language :  "This 
Amendment  was  adopted  with  reference  to  con- 
ditions existing  since  the  foundation  of  our  Gov- 
ernment, and  the  term  involuntary  servitude  was 
intended  to  cover  those  forms  of  compulsory  labor 
akin  to  African  slavery,  which,  in  practical  opera- 
tion were  intended  to  produce  like  undesirable 
results.     It  was  not  intended  to  interdict  enforce- 


I04  The  Constitution 

ment  of  those  duties  which  individuals  owe  to  the 
State,  such  as  services  in  the  Army,  mihtia,  and  the 
jury,  etc.  The  great  purpose  in  view  was  Hberty 
under  the  protection  of  effective  government,  not 
the  destruction  of  the  latter  by  depriving  it  of  essen- 
tial powers." 

Article  XIV. 

Section  i.  All  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  ar^  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside. 
No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immu- 
nities of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life, 
liberty  or  property,  without  due  process  of 
law ;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws. 

The  opening  clause  of  this  section  makes  national 
citizenship  primary  and  State  citizenship  derivative 
therefrom. 

"Subject  to  the  jurisdiction  thereof"  :  The  chil- 
dren of  foreign  diplomats  born  in  the  United  States 
are  not  subject  to  the  jurisdiction  of  the  United 
States,  and.  therefore,  are  not  citizens  of  the 
United  States. 

"The  privileges  or  immunities  of  citizens  of  the 
United  States"  are  those  privileges  and  immuni- 
ties which  they  derive  from  their  national  citizen- 


What  It  Means  To-Day  105 

ship,  not  their  State  citizenship.  They  comprise, 
in  other  words,  those  privileges  and  immunities 
which  the  Constitution,  the  laws,  and  the  treaties 
of  the  United  States  confer  upon  them,  such  as 
the  right  to  engage  in  interstate  and  foreign  com- 
merce, the  right  to  appeal  in  proper  cases  to  the 
federal  Courts,  the  right  to  protection  abroad,  and 
so  on. 

"Nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law"  : 
This  clause,  in  a  general  way,  imposes  the  same 
kind  of  limitations  upon  the  powers  of  the  States 
that  the  similar  clause  of  Amendment  V  imposes 
upon  the  powers  of  the  National  Government. 
However,  it  should  be  noted  that  the  Fourteenth 
Amendment  does  not  impose  on  the  States  the 
same  detailed  requirements  regarding  criminal 
procedure  that  the  Fifth  and  Sixth  Amendments 
impose  upon  the  National  Government.  For  this 
reason  the  States  are  regarded  as  being  left  quite 
free  by  this  Amendment  in  remodelling  their  laws 
of  procedure,  x^ll  that  the  Amendment  requires 
of  the  States  in  this  respect,  the  Court  has  stated, 
is  that  the  accused  person  be  given  the  right  to  a 
fair  hearing  in  a  tribunal  having  jurisdiction  of 
his  case,  a  definition  of  "due  process  of  law"  which 
would  permit  a  State  even  to  abolish  trial  by  jury. 

As  we  have  seen,  the  principal  legislative  power 


io6  The  Constitution 

of  the  States  is  their  "police  power,"  which  is  the 
power  to  promote  the  public  health,  safety,  morals, 
and  general  welfare.  But  not  every  measure  that 
a  State  may  enact  in  pretended  exercise  of  its 
police  power  is  necessarily  constitutional.  In  order 
that  it  may  be  "due  process  of  law"  it  must  have 
"a  real  and  substantial  relation"  to  the  recognized 
ends  of  the  police  power.  Thus,  a  compulsory 
vaccination  law,  although  a  somewhat  drastic 
invasion  of  the  field  of  private  liberty,  is,  never- 
theless, "due  process  of  law"  because  of  its  clear 
relation  to  the  promotion  of  public  health.  On  the 
other  hand,  a  law  which  gave  the  occupant  of  a 
lower  berth  in  a  sleeping  car  the  right  to  demand 
that  the  upper  berth  should  not  be  lowered  except 
for  a  purchaser  was  pronounced  void  as  having 
no  reasonable  relation  to  the  acknowledged  ends 
of  the  police  power.  Again,  a  legislative  measure 
must  not  operate  with  undue  harshness  upon  pri- 
vate rights,  unless  it  is  clear  that  the  general  wel- 
fare cannot  be  otherwise  promoted.  Thus,  while 
the  State  may  forbid  absolutely  the  manufacture 
and  sale  of  intoxicating  beverages,  it  may  not  treat 
private  employment  agencies  so  severely,  since 
in  the  latter  case  the  public  end  to  be  obtained  can 
be  obtained  by  regulation  of  the  business.  Fur- 
thermore, in  applying  this  clause  the  Court  has  rec- 
ognized that   "jurisprudence  is  a  progressive  sci- 


What  It  Means  To-Day  107 

ence,"  and  so  has  felt  free  at  times  to  give  its  sanc- 
tion to  legislation  which  originally  it  regarded  as 
violative  of  "due  process  of  law."  Thus,  recently 
it  has  sustained  a  general  ten-hour  day  law  in  the 
face  of  an  earlier  decision  pronouncing  a  much  more 
restricted  measure  on  the  same  subject  unconstitu- 
tional. 

Summing  the  whole  matter  up,  one  may  say  that 
"due  process  of  law"  is  reasonable  law  and  that 
what  is  reasonable  law  will  be  determined  by  usage, 
by  the  prevailing  morality  and  Ijy  the  preponderant 
opinion  of  the  community  regarding  the  demands 
of  the  public  welfare.  If,  then,  the  Court  appears 
at  times  to  hesitate  to  give  its  sanction  to  legislative 
novelties  which  invade  the  accustomed  field  of  indi- 
vidual liberty,  it  is  because  it  is  not  yet  persuaded 
that  these  novelties  have  back  of  them  "a.  strong 
and  preponderant  public  opinion." 

"Equal  protection  of  the  laws" :  This  clause  does 
not  rule  out  legislative  classifications,  but  only 
those  which  are  "unreasonable"  or  "arbitrary." 
Thus,  it  is  reasonable  to  deny  aliens  the  use  of  shot 
guns,  but  it  is  not  reasonable  to  deny  them  the  right 
to  work  for  a  living.  Again,  it  is  reasonable  to  pro- 
vide that  whites  and  negroes  shall  travel  in  separate 
cars,  but  it  is  not  reasonable  to  require  that  they 
shall  be  segregated  as  to  their  abodes. 


io8  Tnfe  Constitution 

Corporations  are  "persons"  within  the  meaning" 
of  the  Fourteenth  Amendment,  and  so  are  entitled  to 
the  "equal  protection  of  the  laws".  This  does  not 
mean  that  the  law  may  not  exact  si>ecial  duties  of 
them,  but  it  does  mean  that  such  duties  must  l>ear 
some  reasonable  relation  to  the  fact  that  they  are 
corporations  or  to  the  nature  of  the  business  iti 
which  the}'  are  engaged.  Thus,  in  view  of  the 
special  dangers  to  which  <-he  railroad  business  ex- 
poses the  public,  railroad  companies  may  be  re- 
quired to  stand  the  heavy  expense  of  elevating  their 
grade  crossings.  On  the  other  hand,  a  railroad  may 
not  be  required  to  pay  attorney's  fees  for  those  who 
sue  it  successfully. 

See  also  Article  I,  Section  VIII,  Paragraph  3, 
at  page  27. 

Section  2.  Representatives  shall  be  appor- 
tioned among  the  several  States  according 
to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  ex- 
cluding Indians  not  taxed.  But  when  the 
right  to  vote  at  any  election  for  the  choice  of 
electors  for  President  and  Vice-President  of 
the  United  States,  Representatives  in  Con- 
gress, the  executive  and  judicial  officers  of  a 
State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabi- 
tants of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or 


What  It  Means  To-Day  109 

in  any  way  abridged,  except  for  participa- 
tion in  rebellion,  or  other  crime,  the  basis 
of  representation  therein  shall  be  reduced  in 
the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in 
such  State. 

Section  3.  No  person  shall  be  a  Senator 
or  Representative  in  Congress,  or  elector  of 
President  and  Vice-President,  or  hold  any 
office,  civil  or  military,  under  the  United 
States  or  under  any  State,  who.  having  pre- 
viously taken  an  oath  as  a  member  of  Con- 
gress, or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  State  legislature,  or 
as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insur- 
rection or  rebellion  against  the  same,  or 
ofiven  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may,  by  a  vote  of  two-thirds 
of  each  house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt 
of  the  United  States,  authorized  by  law,  in- 
cluding debts  incurred  for  payment  of  pen- 
sions and  bounties  for  services  in  suppress- 
ing insurrection  or  rebellion,  shall  not  be 
questioned.  But  neither  the  United  States 
nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any 
claim   for  the  loss  or  emancipation  of  any 


no  The  Constitution 

slave;    but  all   such   debts,   obligations  and 
claims  shall  be  held  illegal  and  void. 

These  sections  are  today,  for  the  most  part,  of 
historical  interest  only. 

Section  5.  The  Congress  shall  have  power 
to  enforce,  by  appropriate  legislation,  the 
provisions  of  this  article. 

Congress  undoubtedly  might  claim  under  this 
section  a  vast  power  in  the  regulation  of  civil  rights 
which  it  has  never  exercised. 

Article  XV. 

Section  i.  The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color  or  previous 
condition  of  servitude. 

While  the  right  to  vote  may  not  be  denied  "on 
account  of  race,  color,  or  previous  condition  of 
servitude,"  it  may  be  denied  upon  other  grounds, 
such,  for  instance,  as  that  of  illiteracy;  and,  in  fact, 
most  of  the  Southern  States  have  imposed  such 
tests,  which,  in  their  practical  application,  usually 
abridge  the  right  of  the  negro  to  vote  very  seri- 
ously. Laws  of  this  character  render  a  State  liable 
to  have  its  representation  in  Congress  reduced  (see 
Amendment  XIV,  Section  2,  above),  but  actually 
this  penalty  has  never  been  imposed 


What  It  Means  To-Day  hi 

Section  2.  The  Congress  shall  have  power 
to  enforce  this  article  by  appropriate  legisla- 
tion. 

Not  since  1876  has  the  National  Government 
exercised  any  real  power  under  this  section,  nor 
would  public  sentiment  today  sanction  such  action. 

Article  XVI. 

The  Congress  shall  have  power  to  lay  and 
collect  taxes  on  incomes,  from  whatever 
source  derived,  without  apportionment 
among  the  several  States,  and  without  re- 
gard to  any  census  or  enumeration. 

The  occasion  and  operation  of  this  Amendment 
have  already  been  discussed  (see  Article  I,  Section 
VIII,  Paragraph  i;   pp.  18-20). 

Article  XVII. 

[Far.  I.]  The  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each 
State,  elected  by  the  people  thereof,  for  six 
years  ;  and  each  Senator  shall  have  one  vote. 
The  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  legisla- 
tures. 

[Par.  2.]  When  vacancies  hapj>en  in  the 
representation  of  any   State  in  the  Senate, 


112  The  Constitution 

the  executive  authority  of  such  State  shall 
issue  writs  of  election  to  fill  such  vacancies : 
Provided,  That  the  legislature  of  any  State 
may  empower  the  executive  thereof  to  make 
temporary  appointments  until  the  people  fill 
the  vacancies  by  election  as  the  legislature 
may  direct. 

[Par.  3.]  This  amendment  shall  not  be  so 
construed  as  to  afifect  the  election  or  term 
of  any  Senator  chosen  before  it  becomes 
valid  as  part  of  the  Constitution. 

This  Amendment,  as  was  noted  before,  super- 
sedes Article  I,  Section  III,  Paragraph  i. 

Article  XVIII. 

Section  i.  After  one  year  from  the  rati- 
fication of  this  article  the  manufacture,  sale 
or  transportation  of  intoxicating  liquors 
within,  the  importation  thereof  into,  or  the 
exportation  thereof  from  the  United  States 
and  all  territory  subject  to  the  jurisdiction 
thereof  for  beverage  purposes  is  hereby  pro- 
hibited. 

"Intoxicating  liquors" :  It  is  for  Congress  to 
define  this  term  within  reasonable  limits.  By  the 
recently-enacted  Enforcement  Act  it  defines  as  in- 
toxicating any  beverage  containing  more  than 
one-half  of  one  per  cent,  of  alcohol.  The  validity 
of  this  enactment  is  now  before  the  Supreme  Court. 


What  It  Means  To-Day  113 

Section  2.  The  Congress  and  the  several 
States  shall  have  concurrent  ix)\ver  to  en- 
force this  article  by  appropriate  legislation. 

"Concurrent  power" :  As  hitherto  used  in  Con- 
stitutional Law.  the  term  "concurrent  power"  has 
signified  a  power  on  the  part  of  the  States  to  pass 
laws  within  some  field  of  power  belonging  to  Con- 
gress and  such  State  laws  have  been  held  to  be 
valid  only  until  Congress  acted.  Literally,  how- 
ever, the  term  "concurrent  power"  would  seem  to 
signify  power  which  must  be  exercised  concur- 
rently, that  is  conjointly.  What  meaning  it  has  in 
this  Amendment  is  also  a  question  now  before  the 
Supreme  Court.     (See  also  Article  V;    pp.  7&-80.) 

Article  XIX. 

Section  i.  The  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any 
State  on  account  of  sex. 

Section  2.  Congress  shall  have  power,  by 
appropriate  legislation,  to  enforce  the  pro- 
visions of  this  article. 

This  amendment  was  passed  Ijy  the  House  on 
May  21.  1919,  and  by  the  Senate  on  June  4.  IQIQ- 
It  was  ratified  by  the  Wisconsin  legislature  on  June 
5th.  Since  then  it  has  1>een  accepted  by  the  legisla- 
tures of  thirty-four  other  States.     It  needs  therefore 


114  'I'^^E  Constitution 

but  one  more  ratification  (May  22,  1920)  to  make 
it  a  part  of  the  Constitution. 

Note. 

The  reader  who  wishes  to  pursue  the  subject  fur- 
ther is  urged  to  go  to  the  sources,  that  is,  the  deci- 
sions of  the  Supreme  Court  itself.  The  most  recent 
and  most  compendious  collection  of  leading  cases  on 
American  Constitutional  I^aw  is  that  of  Mr.  Law- 
rence B.  Evans,  which  is  published  by  Callaghan  and 
Co.,  of  Chicago. 


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